Public Comment: Transparency Groups Push for Improved FOIA Response Letters

FOIA Advisory Committee
Office of Government Information Services
National Archives and Records Administration
8601 Adelphi Road (OGIS)
College Park, MD 20740-6001

Submitted to: https://www.archives.gov/ogis/public-comments

Dear FOIA Advisory Committee:

The undersigned groups support the Freedom of Information Act (FOIA) Advisory Committee’s efforts to improve public access to government information and its proposed model determination letter. Our groups have promoted greater government transparency, including numerous FOIA improvements, for many years. We support the committee’s proposed model letter, and agree that it will close gaps and inconsistencies in agency FOIA replies, especially those related to cited FOIA exceptions, agency search efforts, and referrals to other components or agencies.

The proposed letter will make the FOIA process more efficient for agencies and the public. Specifically, it will reduce appeals from requesters by making clear how their FOIA request was handled and why any records, or portions thereof, were withheld.

We agree with the advisory committee’s statement that:

By providing more detail about the substance of a determination, requesters can file more targeted and informed administrative appeals. Indeed, supplied with information about an agency’s actions, a requester may not file an administrative appeal at all. Agencies, in turn, need not expend resources where they are not truly needed.¹

There are many positive provisions in the model determination letter. There are also a few issues that we would like to bring to the attention of the committee.

First, we support the model letter’s inclusion of the date the FOIA search was initiated and if (or when) the search was completed. The search initiation date is important to requesters as it is often the cut off for open-ended requests (such as requests for information generated starting on a specific date and through “the present”), some of which were received by the agency months or even years before the search began. It is equally useful to requesters to learn when the search was completed to help ensure an adequate search was conducted.

Second, we support describing the search methodology (including the search terms), the systems searched, and the locations searched in the letter. Doing so will benefit requesters and head off many “adequacy of the search” appeals and litigation. Equally, getting information about the search results, limits on the search, and the total number of responsive records will significantly reduce questions about agency actions and efforts to provide responsive records.

Third, we agree that it is necessary and beneficial to all parties that when applying the multi-pronged (b)(5) exemptions an agency indicates which privilege is being cited. Unlike exemption (b)(7), which is also multi-pronged, the (b)(5) applicability standards are not explicitly defined by statute. When applying exemption (b)(7), an agency is required to specifically identify which of the six sub-exemptions it is invoking to apply the withholding. By providing this information to the requester, the agency is allowing the requester to make an informed decision about the applicability and allowing them to determine whether an appeal is merited without needing to seek more clarity. Exemption (b)(5) should be held to the same standard.

FOIA reviewers are well-aware of the nuances of exemption (b)(5) and must have in mind which specific privilege the withheld information would potentially violate if released.² Merely citing a FOIA exemption in a partial or full denial isn’t helpful to requesters. It is only logical that indicating the specific privilege while processing a request eliminates the need for the requester to instead seek it through an administrative review or from a court. The proposed determination letter gives a prime opportunity to disclose this information. Doing so would reduce follow-up correspondence, appeals, and litigation that is currently necessary to access the same information. It would also significantly reduce the financial and physical resources expended by agencies that, under the proposed format, would not need to address as many requesters’ questions and challenges, since much of the disputed information would now become routinely provided. The committee’s model letter will provide requesters with more information about the redactions, and that will lead to reduced backlogs and administrative and legal actions.

For example, having agencies provide an explanation about the nature of redactions will stop the guessing game that occurs. Requesters immediately think “what is the agency withholding” and “how do we know if it is properly withheld.” Sometimes requesters are lucky and find a FOIA officer who is willing to answer those questions via a call or an email. Unfortunately, that is rarely the case, and requesters are usually forced to file an administrative appeal and wait many months for a decision regarding where the withholdings were appropriate. If the request is remanded, there is waiting. If the appeal is denied, litigation is the next step, which comes with more waiting and a hefty price tag for the government, the requester, and sometimes the courts.

Although the proposed determination letter does make several improvements to the FOIA process, there are a number of areas for additional improvement.

For instance, we recommend the following addition (in bold) because the first sweep of documents might include items that are non-responsive or duplicates.

As a result of these searches, [###] pages [or volume/other descriptor] of potentially responsive records were located. After completing its review, [agency] has identified a total of [###] pages [or volume/other descriptor] as responsive to your request.

Another area for improvement is related to the “foreseeable harm standard,” which is in the FOIA statute. The letter mentions the standard, but more can be done on this issue. If and when this standard is applied, the determination letter should describe what the foreseeable harm is or how the agency determined that release of the requested information meets that standard. We urge the committee to add that each record withheld should have its own analysis to support the agency’s claim that foreseeable harm exists.

We also request that the committee revise the language related to foreseeable harm in the “partial denial” and “full denial” sections of the letter, which states that withholdings can be “separately justified under the statutory foreseeable harm standard, 5 U.S.C. § 552(a)(8).”³ This is misleading, as foreseeable harm does not “justify” withholdings but instead requires disclosure unless there is specific and foreseeable harm. As written, it signals to the public that the law requires withholdings when the opposite is true. To avoid this misinterpretation of the foreseeable harm standard and its proper invocation, we propose the following:

FOIA allows agencies to withhold information that is covered by one of the nine exemptions, set forth in 5 U.S.C. § 552(b)(1)-(9), or if withholding of the information is required by law. However, as the DOJ states in its FOIA guidelines, “[i]nformation that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure.”⁴ That standard applies when the agency determines information is protected by one or more of the nine exemptions and can independently identify a non-generalized explanation of the foreseeable harm that would result from disclosure.

The proposed letter should also address shortcomings regarding information-sharing about a number of the exemptions. Our groups recommend that the committee consider the following improvements:

1. Provide the actual statute that justifies any (b)(3) exemption.⁵
2. Identify suggested redactions from submitters made pursuant to 5 U.S.C. § 552(b)(4) and EO 12600.⁶
3. Declare that any exemption pursuant to (b)(6) weighed the public interest and the official’s level of authority where senior officials hold a lesser privacy interest than other government employees. This equally applies to privacy exemptions under (b)(7)(C).
4. Declare when there is a current enforcement or proceeding that would be impacted by the release of the requested information.⁷

These recommendations will give requesters a better idea of what was withheld. The person who processes the request has firsthand knowledge, the sharing of which can prevent any confusion about what was withheld and why. If the processor provides that information at the outset of the production, such as in the determination letter, the need for requesters to escalate the request (via correspondence, administrative appeal, or litigation) will be significantly reduced. Not only is this beneficial for the requester but also presents agencies with substantial cost-savings opportunities. FOIA administration is not funded under a specific line item in the legislative appropriations process for most agencies. Instead, FOIA offices are generally funded as a portion of general administrative activities, making it challenging to maintain the necessary staffing and resources to function at optimal levels and reduce backlogs.

Another problem is that agency contact information is often lacking during the FOIA process and when requesters receive a determination letter. The determination letter should provide direct contact information for the FOIA officer and the FOIA liaison so that requesters can ask questions and receive answers. If the goal is to reduce backlogs and save resources, unmonitored phone numbers and generic email addresses, which often result in no contact at all, are not a best practice and should be used sparingly at the determination letter stage.

Finally, while estimated completion dates are mentioned in the FOIA statute,⁸ in practice agencies are abusing the system. Recently, agencies have pushed estimated completion dates back by months and even years without explanation. This practice is stringing along requesters, and preventing litigation for those who can afford to turn to the courts. In some cases, these agency-caused delays result in requesters receiving “are you still interested?” letters. The committee should review estimated completion dates and recommend that agencies do a better job at providing realistic completion dates. The current provision restricting the collection of fees when agencies fail to comply with FOIA’s statutory deadlines is not working.⁹ Action must be taken to prevent agencies from disregarding the mandate to provide “the date on which a determination is expected to be dispatched.”¹⁰

We thank the committee for proposing a model determination letter, and we hope that these comments will provide a path forward that will save a lot of time and resources.

Sincerely,

Open The Government
Project On Government Oversight
Transparency International U.S.
American Oversight
National Coalition for History
The FOIA Project at FOIAproject.org
Anne Weismann, FOIA Litigator
David Bahr, FOIA Advisory Committee Member 2014-2016