Pebble Beach Golf Links—7th Hole (Par 3)
As a member of the Senior Executive Service, Richard Huff served as one of two co-directors of the Office of Information and Privacy from the Office's creation in 1982 until his retirement in 2005. He was the official designated by the Attorney General to act on all administrative appeals from denials under the Freedom of Information Act and Privacy Act of 1974 by Department of Justice components. Mr. Huff also oversaw the development of the Freedom of Information Act Guide & Privacy Act Overview,” the Department of Justice’s treatise that was updated and distributed every other year to more than 22,000 recipients.
How did you end up working in FOIA and at OIP?
I was in my seventh year on active duty with the Army assigned to the Personnel Section, Administrative Law Division in the Office of the Judge Advocate General at the Pentagon, when I was asked to join the predecessor DOJ office by one of my former colleagues at the Pentagon. I’m not sure I knew how to spell FOIA at the time.
Is there a FOIA issue, policy, or case that you worked on during your tenure in the government that you are most proud of?
There are two. First, representing the government before the D.C. Circuit Court of Appeals. The case was Schwaner v. Dep’t of the Air Force, 898 F.2d 793 (D.C. Cir. 1990), in which we argued for an expansive view of a “Low 2.” The oral argument went extremely well, which left me all the more shocked when the opinion came down 2-1 in favor of the requester. I was also very proud, although quite nervous, to have represented the Department of Justice twice in congressional hearings -- once at the subcommittee level and once at the committee level.
How have you enjoyed your retirement?
Although I know it isn’t supposed to work out this way, but I now play more golf and my handicap has actually increased by several strokes. My wife and I also do some traveling with friends, family, and for work. This year included New Orleans, a cruise of the western Caribbean, visiting natural parks and playing golf in Costa Rica, staying with family at Lake Coeur d’Alene, ID before going on to Yellowstone, and teaching in Chicago, Morgantown, WV, and Albuquerque.
We know you have remained very engaged in FOIA-related activities. For the benefit of our readers, can you discuss some of those activities?
I have served two terms as a member of the American Society of Access Professional’s Board of Directors and have taught various aspects of the FOIA and Privacy Act, primarily for ASAP, the Graduate School USA, and AINS, from one hour through three days to diverse groups and those of an individual agency. Additionally, I co-authored a law review article on Exemptions 6 and 7(C) as they apply to government employees.
What advice would you give to the next director of OIP?
Two points. First, be as fortunate as I was in never having been ordered by a political boss to do something I believed violated the law. Second, work hard to be a supervisor who is respected, whose requests are followed, and, if possible, liked.
Would it be more beneficial for OIP to be managed by two co-directors, like it was until you retired?
It worked very well for the two us in that we largely divided the substantive work in the office and shared the personnel management. I don’t know how well two other individuals could work this out, especially over almost 25 years.
Three years ago, DOJ issued for public comment a draft policy creating a “Release to One, Release to All” presumption for FOIA processed records. What are your thoughts about this draft policy, which DOJ has yet to implement?
I favor it.
Following up on that, would you prefer a simultaneous release to the requester and the public, or would you prefer a period of exclusive use for the requester? If the latter, how many days of exclusivity seem reasonable to you?
I favor disclosure to all, no exclusivity.
If you were in Congress, would you support or oppose restoring “high” Exemption 2 and the National Parks test for Exemption 4?
I favor restoring both, even though the first would result in a bit less information available to the public. The second proposal would result in the public having a much greater understanding of how business and government interact, particularly in the contracting process. I would go even farther on a part of Exemption 4: many states and at least one foreign nation of which I am aware disclose all contract prices (including unit prices), and companies still do business with them.
Many legislators and members of the FOIA community have expressed concern over so-called “sensitive review” and consultations with the White House regarding politically sensitive requests. Do you think there is a role for political appointees and the White House in the agency FOIA process? If so, is there a limit to that involvement?
During my time at OIP I had a standing agreement that, with one exception, I would advise my political supervisor of any disclosure that was likely to be in the news at the same time I made the disclosure -- so he or she would be aware of it, but couldn’t stop it. The one exception was for records of that office; then, just as for records of any other component of the Department of Justice, I would discuss the matter with them before making a disclosure determination.
What do you think are the next “hot” FOIA issues?
Exemption 4, as discussed above.
Where is FOIA law heading?
Legislatively, over the long run, toward more disclosure, which has been the congressional trend over the years. If there is anything I believe Congress could cut back on, it would be that we shouldn’t have to collect so much data. For every hour we spend collecting data or writing a report, we take an hour away from processing a request. From a processing standpoint, I have been surprised how much time can, in many cases, be saved by the use of artificial intelligence computer programs.
Have you ever submitted a FOIA request or been tempted to do so?
No, I have not; yes, I have been tempted to do so.
What other areas of law might you have practiced if not disclosure law?
Perhaps corporate acquisitions and mergers. I understand the pay is a bit better.