The U.S. Department of Justice solicited feedback last month on a draft release policy concerning FOIA-processed documents. This followed a six-month pilot program in 2015 and an assessment by the Chief FOIA Officers Council in the latter part of 2016. The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.
A. I was able to submit a public comment just before the deadline, so I'll do my best Bill Belichick impression by deferring and kicking it off to you, Kevin and Ryan.
K. I had originally thought that the records should immediately be released to the public, but I think I've come around to some sort of waiting period. The main issue with the waiting period, as Allan discusses in his comment, will be the timing. I think whatever is easiest to implement at a minimum of five business days is more than sufficient. Should be interesting to see what sort of method of posting each agency goes with and how much information is provided about the requested records.
R. I tend to believe that agencies should try to simultaneously release records to requesters and the public. Some already do this with FOIAonline. I can appreciate why a journalist would want a period of exclusive use to avoid another person stealing a potential story, but in the end, I think that concern is overstated. Assuming agencies can post productions for immediate public access, original requesters will still have the advantage. They will be in the best position to digest and use the records, either in light of their expertise or the inevitable delay between notice of a production and someone else finding the records online. Unless an agency has a powerful search tool in its reading room, I doubt it'd be so easy to troll for someone else's "hot documents." I also don't think the incentive to file requests will diminish. If anything, releasing to all immediately may spur quick dissemination of information when it is newsworthy or in the public interest.
I'm curious how the policy will intersect with administrative appeals. Not just anyone will be able to file an appeal based on records that have been "released to all." That would require a change in the statute. But if an original requester prevails in challenging some redactions, for example, will an agency be required to update its library of released records? Or will the records in re-released form only be available to the successful appellant-requester? I don't believe DOJ has addressed this issue.
A. Oh, good, we now have something to quibble about. Congress considered this issue twenty years ago and it declined to extend the electronic posting requirement beyond "frequently requested" records. That seems sensible because, based on my government experience, a significant percentage of FOIA-processed records are likely to be of interest to very few people other than the requester. So why expend agency resources to post those records? To merely reduce the possibility of receiving any future request for the same material? That is thin gruel to support a simultaneous release policy that threatens to deprive a requester from reviewing FOIA-processed records before "free-riding" competitors. As I read the government's proposal, nothing would prevent an agency from releasing records to a requester by first class mail and posting those records online on the same day without notice to the requester. In that scenario, the public conceivably would be able to access requested records before the requester, which defies fairness. And I would not underestimate the requester community's ability to construct web crawlers that can locate newly posted documents in agency reading rooms.
I should clarify that I believe all requesters, not only journalists, should be entitled to at least some period of guaranteed exclusive access, even if for just one day. Why completely ignore the efforts of non-journalists -- often spanning years and at significant monetary expense -- to obtain records that the government has declined to proactively release? If you value entrepreneurship, "Option 1" of DOJ's draft policy should be a no-go as currently written.
K. This goes back to what I said about the technology behind how agencies will be posting the records. If, for example, you can subscribe to an RSS feed like we have here at FOIA Advisor (subscribe for daily email updates at this link) or at MuckRock (feeds to submitted and completed FOIA requests) and have new items sent to your inbox, then it might make more sense to have a built-in waiting period before posting. If the documents are going to be posted in a fashion similar to "frequently requested" records or FOIAonline, then a built-in waiting period won't be as important in my view. FOIAonline has a pretty robust search function, but it would take some work to identify new records on a regular basis.
R. While I acknowledge the history of the proactive disclosure requirement, I'd also point out that the FOIA Improvement Act of 2016 has clarified that requirement and codified DOJ's long-standing guidance, namely, that agencies must disclose records that have been requested at least three times or that are expected to become the subject of frequent requests. I don't think its a huge step from this legal requirement to DOJ's "release to all" presumption. Unless we entirely reject the draft policy -- which is an approach that Allan's arguments seem to support -- agencies are going to have to bear a new burden in posting most everything they disclose. It's just a matter of timing. Option 1 possibly avoids a two-step process that could consume a lot of agency resources. That being said, I'm not wedded to simultaneous release. Some of the technological aspects that Kevin highlights could convince me otherwise. Maybe it'd be easy for agencies to design a delayed disclosure mechanism. Maybe they will use something like an RSS feed. I'll admit that Allan has imagined an excellent hypothetical where an agency mails productions to certain requesters while posting them online for the rest of the world to access. It'd be a great way for agencies to politicize the FOIA and punish journalists or requesters who oppose their policy agendas.
Now, to move away from the timing issue . . . Am I the only one troubled by this "good cause" exception? I'm okay with excepting records that cannot feasibly be posted online. But I'm concerned with the idea that whole categories of records aren't appropriate for "release to all." The FOIA already allows agencies to withhold materials that pose a risk to national security (Exemption 1), confidential financial information (Exemption 4), personal privacy interests (Exemption 6), law enforcement interests (Exemption 7), or most anything else that could be privileged (Exemption 5). There should be no difference in determining whether information can be disclosed to an individual requester as opposed to the world. As a nice compromise, I think DOJ should just create a single, straight-forward, and government-wide exception for any record that (1) illustrates or depicts graphic violence, or (2) that appeals to prurient interests, such that we would not want a child to access it. Everything else should be fair game.
To be continued on Friday, Jan. 13, 2017