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Records Show How Former FBI Director James Comey Misled the DOJ Inspector General About His Personal Email Use

December 7, 2018 by

Cause of Action Institute (CoA Institute) has obtained a second batch of former FBI Director James Comey and former FBI Chief of Staff James Rybicki’s emails sent or received on their personal, non-official email accounts to conduct agency business. The FBI’s latest records production is the second of four rolling productions. The FBI reviewed 518 pages of emails and released 439 pages to CoA Institute. Once again, these emails undermine Director Comey’s statements concerning the types of matters he discussed while using his personal email to conduct official business.

Last month, CoA Institute published the first set of records received as part of our FOIA lawsuit. Contrary to Director Comey’s representations to the DOJ that he never used his personal email account for “sensitive work,” the first batch of emails we obtained revealed otherwise. Those records included emails withheld in full and others redacted in part under the FOIA’s law enforcement exemption, which exempts from public disclosure certain sensitive information created or compiled for law enforcement purposes.

This new second batch of emails tells much of the same story. For example, the redactions in the completely redacted email below cite 3 bases for the application of the law enforcement exemption (b7A, C, & E). These exemptions pertain to information that, if released, could (A) interfere with law enforcement proceedings, (C) constitute an invasion of personal privacy, or (E) disclose law enforcement techniques and thereby risk circumvention of the law. In other words, the FBI determined that the work Director Comey conducted on his personal account was so sensitive in nature that it justified redaction under Exemption 7 of the FOIA to prevent disclosure to the public.

As explained in the FBI’s cover letter accompanying the production to CoA Institute, the FBI is only providing emails that Director Comey and his Chief of Staff forwarded or copied to their official FBI email accounts: “The FBI conducted email searches for any communications to or from James Rybicki’s and James Comey’s personal email accounts, located within Rybicki’s and Comey’s FBI email accounts.”  This follows from Director Comey’s claims that all FBI-related work he conducted on Gmail was forwarded to an official FBI account. As Director Comey told the DOJ Inspector General:

“I was always making sure that the work got forwarded to the government account to either my own account or Rybicki, so I wasn’t worried from a record-keeping perspective was, because there will always be a copy of it in the FBI system.”

But if Director Comey misrepresented the nature of the work he conducted on his personal email account, a plausible concern arises as to whether Director Comey thoroughly searched and forwarded all work related emails from his personal account to his government account This is why using private email accounts for government business is so problematic: The agency—and ultimately the public—must rely on the very people who are violating the rules by using personal email accounts to forward their work-related emails to official government accounts. If they forget or choose not to copy an official account, there is little chance the agency will ever search for and recover the federal records created or received on those personal accounts. And that means those records cannot be produced to the public under the FOIA.  The use of non-official accounts to conduct agency business, whatever the reasoning, imperils transparency, accountability, and good government, and it undermines trust.

You can view and download the documents here:

Part 1 (411 pages)

Part 2 (30 pages)

FBI Cover Letter

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

Thomas Kimbrell is an Investigative Analyst at Cause of Action Institute.

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

Filed Under: Media, Blog Tagged With: , , , , ,

Department of the Army Refuses to Search Its Servers for Email Records

July 10, 2018 by

In May 2016, Cause of Action Institute (“CoA Institute”) sued the Department of the Army after it refused to produce records under the Freedom of Information Act (“FOIA”) concerning the use of teleconference technology at the White House.  CoA Institute’s FOIA request, which was filed in June 2015, followed the release of a record in an unrelated FOIA matter by the Office of Management and Budget (“OMB”).  That email revealed how a special email account, “system.manager@conus.army.mil,” had been set-up and was operated by the military for the purposes of facilitating teleconferences.
Although the OMB record may strike some as containing seemingly benign information, it nonetheless piqued our interest.  We realized that little is known about how the Executive Office of the President (“EOP”) arranges its audio and video conferences.  Moreover, there is scant public information available about the important role played by the President’s “IT team,” the White House Communications Agency (“WHCA”), in the functioning of the White House.  We were also troubled because the OMB record showed how WHCA was responsible for facilitating a conference call for inter-agency consultation on “White House equities.”  As we have repeatedly described, “White House equities” review is a form of FOIA politicization that allows the President to interfere with and delay the production of politically sensitive records.

WHCA released approximately 200 pages of email correspondence in response to our request.  The Army, however, failed to identify any responsive records.  In the lead up to summary judgment proceedings, we continually asked the Army about its efforts to search for records in the “@conus.army.mil” account.  We had even given the Army a copy of the OMB email when we filed an administrative appeal in September 2015.  But the Army kept mum and only provided details about its “search” last month, arguing that it had located the so-called CONUS account and determined that its contents were stored on Army computer servers.  But the Army claimed that the account would contain zero “responsive records.”  Why?  Because only “EOP personnel” interfaced with the account, even though it was owned and maintained by the military and stored on Army hardware.

We filed our own cross-motion for summary judgment yesterday.  The first part of our argument focuses on the Army’s unjustifiably narrow and unfair reading of our FOIA request, which sought all records of correspondence with EOP about conference calls “hosted and/or arranged by the military.”  Not only did we give the OMB record to the government to demonstrate exactly the sort of records we wanted—which should be enough to defeat the Army’s interpretation of the scope of our FOIA request—but any natural reading of the operative words “hosted” and “arranged” would include the situation of an agency maintaining a software system and email account for the sole purpose of setting-up audio and video conferences.  Whether Army personnel were involved in the day-to-day business of confirming the details for a new conference, or merely set up some sort of automated process, is without moment.

The second part of our cross-motion concerns the redaction of non-contractor employees of the Department of Defense (“DOD”) in the WHCA correspondence.  DOD takes the position that, as a categorical matter, nearly all the names and email addresses of its employees may be kept secret.  But there are several problems with this position.  First, FOIA caselaw generally disfavors categorical claims and, in the context of personal privacy interests, the public interest can outweigh an individual’s right to keep their name and work information secret—particularly when the individual is a government employee.  Second, official DOD policy posted on the agency’s FOIA website explicitly directs the sort of information we want to be made public unless disclosure would raise “substantial security or privacy concerns.”  Finally, the FOIA’s newly-added “foreseeable harm” standard mandates that an agency demonstrate how specific pieces of information may, if disclosed, be reasonably foreseen to harm an interest protected by a statutory exemption.  That sets a high bar, particularly in the context of DOD’s categorical and generally applicable policy.  In this case, it seems unlikely that the EOP’s IT staff could be described as working in a “sensitive” position, akin to activity duty military personnel on the front line or law enforcement officials involved with criminal investigative activities.  We look forward to the Army’s reply brief.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

Filed Under: Media, Blog Tagged With: , , , ,

GAO Report Highlights Agencies Failing to Implement the FOIA

June 26, 2018 by

A report released yesterday by the Government Accountability Office (“GAO”) provides alarming details about the dearth of agency efforts to fully implement the Freedom of Information Act (“FOIA”).  GAO previewed a draft of its report in March 2018 when its Director of Information Technology Management Issues, David Powner, testified at a hearing on FOIA compliance before the Senate Committee on the Judiciary.  At the time, GAO published a concurrent report on how federal courts regularly fail to refer cases to the Office of Special Counsel (“OSC”) to determine whether disciplinary action is warranted in instances where officials have acted arbitrarily or capriciously in withholding records.  (Cause of Action Institute’s (“CoA Institute”) commentary on that issue can be found here.)  Yesterday’s report finalizes GAO’s findings and incorporates feedback from the eighteen agencies in the sample subject to the audit.

Many Agencies Have Failed to Update Regulations and Appoint Chief FOIA Officers

One aspect of GAO’s audit involved reviewing whether the eighteen agencies properly implemented various requirements introduced by the FOIA Improvement Act of 2016 and the OPEN Government Act of 2007.  Those amendments to the FOIA require agencies, inter alia, to designate chief FOIA officers, publish timely and comprehensive regulations, and update response letters to indicate things such as an extended, 90-day appeal period.  GAO also evaluated what efforts were underway by the Office of Management and Budget and the Office of Information Policy to develop a government-wide FOIA portal.

The chart above, which is taken from the GAO report, encapsulates some of the unfortunate findings.  Even though it is a statutory requirement, five of the eighteen agencies have not designated a chief FOIA officer in line with applicable requirements (e.g., appointing a senior official at the Assistant Secretary or equivalent level).  Chief FOIA officers are responsible for monitoring agency-wide compliance with the FOIA, making recommendations for improving FOIA processing, assessing the need for regulatory revisions each year, and serving as a liaison with the Department of Justice Office of Information Policy, the Office of Government Information Services, and the Chief FOIA Officers Council.  It remains unclear why some agencies are reticent to comply with this aspect of the FOIA.

Another disturbing finding is that few agencies in the sample timely updated and published regulations to implement the FOIA Improvement Act of 2016.  At least five agencies have deficient regulations—such as the Department of State—or have not bothered to issue a preliminary rulemaking—such as the White House Office of Management and Budget (“OMB”).  Agencies offered several reasons for why they have not complied with the law, with most citing a lengthy internal review process.  The State Department explained that it had just finished updating its regulations before passage of the FOIA Improvement Act.  The U.S. African Development Foundation, however, claimed that it did not even need “to disclose information regarding fees in their regulation” because it “has not charged a fee for unusual circumstances.”

OMB’s failure to satisfy GAO’s criteria for proper FOIA regulations is unsurprising and indicative of a general disregard for regulatory compliance with the FOIA at the agency.  For example, for the past few years, CoA Institute has carefully tracked whether agency FOIA regulations have been updated to include the current statutory definition of a “representative of the news media.”  Prior to the D.C. Circuit’s landmark 2015 decision in Cause of Action v. Federal Trade Commission, many agencies relied on OMB’s Uniform Freedom of Information Fee Schedule and Guidelines to impose an “organized and operated” standard that deprived nascent media groups of preferential fee treatment.  The OMB Guidelines, which were written in 1987, have never been updated, despite requests from the FOIA Advisory Committee and the Archivist of the United States.  CoA Institute thus filed its own petition for rulemaking on the issue in June 2016, followed by a lawsuit last November after OMB failed to respond.

Agencies Have Made Little Progress on FOIA Backlogs

Another aspect of GAO’s audit involved examining whether the eighteen agencies had made any headway in reducing their FOIA request backlog, as well as cataloging the statutes used in conjunction with Exemption 3 to withhold records from the public.  GAO found that few agencies had managed to reduce their outstanding backlog.  One major reason for the lack of progress on reducing backlogs was the failure of most agencies to implement “comprehensive plans” laying any sort of strategy.  As for GAO’s catalogue of statues used to withhold information exempt as a matter of law, the most commonly cited provisions were 8 U.S.C. § 1202(f), which concerns records about the issuance or refusal of a visa, and 26 U.S.C. § 6103, which protects the confidentiality of tax returns and return information.

GAO’s audit is an important indication of how far many agencies must go to comply fully with the FOIA.  This is particularly true insofar as GAO’s findings can be generalized across the entire administrative state.  Congress, the transparency community, and the American public must exert even greater pressure on Executive Branch agencies to meet their obligations under the law and to improve their commitment to open government.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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CoA Institute Calls on Department of Agriculture to Revise Problematic FOIA Rule

June 11, 2018 by

Cause of Action Institute (“CoA Institute”) submitted a comment today to the Department of Agriculture (“USDA”) concerning the agency’s publication of a deficient rule that proposes revisions to the agency’s Freedom of Information Act (“FOIA”) regulations.  CoA Institute explained that USDA’s FOIA rule fails to provide a definition of a “representative of the news media” that conforms with statutory and judicial authorities.  The proposed regulations also could cause confusion by directing agency staff to consult outdated fee guidance published by the White House Office of Management and Budget (“OMB”).

News Media Fee Category

USDA’s proposed regulations improperly retain the so-called “organized and operated” standard in the definition of a “representative of the news media.”  This is an important deficiency because the “organized and operated” standard has been used in the past to deny news media requester status to nascent media groups and government watchdog organizations like CoA Institute.  Indeed, CoA Institute took another agency—the Federal Trade Commission—to court, and argued its case all to the way to the D.C. Circuit, just to get the agency to acknowledge that its similar retention of the “organized and operated” standard was unlawful and led to improperly denying CoA Institute a fee reduction.  The D.C. Circuit eventually issued a landmark decision in CoA Institute’s favor to clarify proper fee category definitions and their application in FOIA cases.

Congress amended the FOIA to provide a straightforward and comprehensive definition of a “representative of the news media.”  USDA—and all other agencies—should not attempt to modify that definition or introduce additional hurdles for news media requesters.

OMB Fee Guidelines

USDA’s FOIA rule also proposes to retain references to the OMB’s 1987 FOIA fee guidelines, which are the genesis of the “organized and operated” standard.  Specifically, USDA would like its disclosure officials to estimate fees in accordance with the OMB fee guidelines.  But those guidelines are outdated and unreliable.  Over the past thirty years, Congress has amended the FOIA on numerous occasions, courts have developed overriding FOIA jurisprudence, and technology has evolved in significant ways.  Yet OMB has made no effort to revisit its fee guidance.  That guidance should not be used as a reference point for the proper administration of the FOIA.

In 2016, the FOIA Advisory Committee and the Archivist of the United States called on OMB to update the fee guidelines.  CoA Institute even filed a petition for rulemaking on this issue.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  Until OMB acts to revise its fee guidelines, USDA should not direct its staff to consult them in any way as authoritative.

Other Agencies Have Followed CoA Institute’s Advice

CoA Institute has succeeded in convincing a number of other agencies to abandon the OMB’s “organized and operated” standard in favor of a proper definition of “representative of the news media” in line with the FOIA statute and controlling case law.  Those agencies include, among others, the Consumer Product Safety Commission, Office of the Special Counsel, Department of Defense, U.S. Agency for International Development, and Department of Homeland Security.  We hope that USDA similarly will revisit its FOIA rule and eliminate the “organized and operated” standard in lieu of a proper definition of a news media requester.

Ryan Mulvey is Counsel at Cause of Action Institute

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New Records Reveal the FAA Has Been Tracking FOIA Media Requesters

May 16, 2018 by

The Freedom of Information Act (“FOIA”) was introduced to ensure public access to records of the Executive Branch.  Unfortunately, agency FOIA processes have long suffered from politicization at the hands of bureaucrats and political appointees who hope to frustrate the disclosure of embarrassing or newsworthy documents.  A recent report about enhanced “vetting” of FOIA requests at the Environmental Protection Agency (“EPA”), for example, demonstrates the tenacity of those who govern—regardless of their political affiliation—to keep secrets from the concerned public.  Similarly, earlier this year, Cause of Action Institute (“CoA Institute”) revealed how the National Oceanic and Atmospheric Administration expanded its “sensitive review” procedures by putting records requests from attorneys, and requests concerning the Trump Administration’s transition period, into special processing categories.  Now, newly disclosed records from the Federal Aviation Administration (“FAA”) demonstrate how that agency has made concerted efforts to keep tabs on news media requesters.

The FAA’s FOIA “Media Reports”

“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records at issue are politically damaging, embarrassing, or otherwise newsworthy.  Politicization can come in different forms.  Sometimes sensitive review entails an agency’s public affairs team or communications specialists being kept informed of new requests or outgoing productions of records.  In other instances, it involves political appointees supervising searches or making redaction decisions.  In all cases, sensitive review delays, and sometimes prevents, the disclosure of records that the public has a right to view.

According to records obtained by former CoA Institute attorney Allan Blutstein, the FAA’s sensitive review process includes a “tracking system” for requests submitted by representatives of the news media.  News media requesters automatically receive a fee reduction under the FOIA and presumptively satisfy some of the requirements for expedited processing. This preferential treatment is meant to recognize the vital role of the media in a participatory democracy.  The intentional targeting of media requesters within a framework for sensitive review, therefore, is especially concerning.

The following screenshot from one of the FAA’s “Media Request” charts shows just how the agency tracks pending requests.  Each line includes a description of the records at issue and each request’s processing “status,” such as whether a search has been conducted or responsive records are under review.

Although approximately half of the requests recorded in the FAA chart (100 of 184) were submitted during the Trump Administration, the remainder date from as early as April 2009.  Not only does this reveal an unacceptable backlog at the FAA, but it suggests that the practice of targeting media requesters for special scrutiny or “tracking” may have originated with the Obama White House.  CoA Institute warned in early 2014 that FOIA processes across the government were being clogged up by political intervention because of news media requesters seeking the disclosure of records about embarrassing scandals.  It appears that the FAA’s current practice reflects the politicization that was covertly emphasized by the Obama Administration.

(A complete copy of the FAA tracking chart is available here.  FOIA requests highlighted in blue have not yet been assigned to a FOIA officer, while requests in yellow are, in most cases, pending legal, business or supervisor review.  An agency-created summary of the highlighted FOIA cases is available here.)

As a representative of the news media, CoA Institute itself was subject to the FAA’s tracking regime.  Three of our pending requests, dating from early 2012 and 2013, were flagged.  One of those three requests has not even been assigned to a disclosure officer for processing, despite the fact that it was submitted to the FAA almost five years ago.

The version of the FAA’s “Media Request” tracking table obtained by CoA Institute, which is dated April 26, 2018, was circulated amongst several officials within the FAA’s Office of Communications (“AOC”) and the Department of Transportation’s Office of the Secretary (“OST”).  The cover email also includes a batch of incoming record requests.  All of this suggests that a key group at the FAA is responsible for managing the sensitive review process and keeping key officials within the Administration knowledgeable about ongoing FOIA affairs.

A complete copy of this email is available here.  To the extent we have been able to identify the individuals involved, we believe they hold the following positions within the FAA’s FOIA Office, Office of Communications, or the Office of the Secretary of Transportation:

  • Kimberly McCormick – FOIA Management Specialist
  • Kathy Ray – Departmental FOIA Officer, Department of Transportation
  • Laura Brown – Deputy Assistant Administrator for Public Affairs
  • Gary Kolb – Chief of Staff, Communications Division
  • Greg Martin – Assistant Administrator for Communications
  • Elisabeth Smeda – Senior Advisor to the Acting Administrator
  • Collen Donovan – Senior Advisor to the Deputy Administrator
  • Carlos Alfaro – Director, Information and Technology
  • Geraldine Gour – Manager, Administrative Services for the Aircraft Certification Service
  • Duke Taylor – Manager, FOIA Program
  • Louis Fuss – Senior FOIA Management Specialist
  • Laurie Karnay – FOIA Management Specialist
  • Susan McLean – FOIA Management Specialist
  • Delphine Ndi – FOIA Analyst

A collection of the incoming FOIA requests attached to the email is available here.  Those requests were submitted by various reporters from Mother Jones, ABC, NBC, Fox10 News of Mobile, various local newspapers, and ProPublica.

The Problem of FOIA Politicization

Unfortunately, there is nothing unlawful about an agency keeping separate “tracking” notes on FOIA requests submitted by members of the media.  Nor is there anything unlawful in an agency keeping its communications officials, or even other parts of the Executive Branch, aware of incoming requests or outgoing records that could elicit media coverage or public inquiries.  But the sort of intentional tracking and obvious backlog that has become standard procedure at the FAA is unacceptable and clearly violates the spirit of the FOIA.  The fact that requests from the beginning of 2009 are still pending is inexcusable.  The real danger of politicization at the FAA should be self-evident.  When an agency is committed to treating media requesters in a special way, the tendency will always be to delay and obstruct disclosure, thus impairing FOIA rights and inhibiting the proper functioning of a critical media.

Ever since President Trump took office, the transparency community—including CoA Institute—has raised valid concerns about the White House’s coordinated effort to stifle transparency, both in the context of FOIA and with respect to congressional inquiries and oversight requests.  This is an unfortunate development, and CoA Institute remains committed to fighting for open government.  But insofar as the current Administration questions the value of President Obama’s legacy, it should commit itself to greater transparency.  The Washington Post described the Obama Administration as one of the “most secretive,” “most elusive,” and “most punitive toward whistleblowers and leakers who want to bring light to wrongdoing they have observed from inside powerful institutions.”  The Trump Administration should endeavor to do better.  No one should fear the disinfecting power of sunlight, and the federal government is always in need of some cleaning.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Filed Under: Media, Blog Tagged With: , , , , ,

Politics Clouding Criticism of the EPA’s Heightened Sensitive Review FOIA Procedures

May 14, 2018 by

Last week, a report from Politico revealed that the Environmental Protection Agency (“EPA”) maintains a burdensome “sensitive review” process for Freedom of Information Act (“FOIA”) requests concerning Administrator Scott Pruitt’s activities.  According to internal sources, officials within the Office of the Administrator have “reviewed documents collected for most or all FOIA requests regarding [Pruitt’s] activities[.]”  The Politico report further claims that this “high-level vetting” has increased, as compared with the policies and practices introduced during the Obama years.  “This does look like the most burdensome review process that I’ve seen documented,” argued Nate Jones from National Security Archive.

It is true that the Trump Administration has enhanced sensitive review processes at the EPA.  Other agencies have witnessed a similar expansion of sensitive review, as Cause of Action Institute’s investigation of the National Oceanic and Atmospheric Administration demonstrates.  But it would be a mistake—as I argued last December—to think that the Obama White House was any better at avoiding FOIA politicization.  The EPA has a long and terrible track record for anti-transparency behavior.  Consider the agency’s blatant weaponization of fee waivers.  According to data compiled by the Competitive Enterprise Institute, and reported by Reason and The Washington Examiner, the Obama EPA regularly denied public interest fee waivers to organizations critical of the agency’s regulatory activities and the White House’s policy agenda.  By contrast, left-leaning groups nearly always (92% of the time) received fee waivers.

In addition to this viewpoint discrimination, the EPA suffered other transparency scandals.  Former Administrator Lisa Jackson infamously used a fictional alter ego—“Richard Windsor”—to conduct agency business on an undisclosed government email account.  And the EPA “misplaced” over 5,000 text messages sent or received by former Administrator Gina McCarthy and other top officials.  The Obama-era EPA also tolerated the widespread use of personal email accounts by high-ranking bureaucrats, a practice that significantly frustrated public access to agency records and proved to foreshadow or parallel other FOIA scandals at the White House Office of Science and Technology Policy, the Department of Defense, and Department of Homeland Security, the Internal Revenue Service, and, most famously, the State Department.  It is noteworthy that, in March of 2015, The Guardian—hardly a right-leaning paper—could seriously ponder: “Is the EPA having a transparency crisis?”

The history speaks for itself: the EPA under Scott Pruitt is not a new or unique threat to transparent government.  The litany of FOIA abuses at the EPA and other agencies under both Presidents Obama and Trump demonstrate that we should fight the tendency to view the problem of FOIA politicization through a partisan lens.  “Sensitive review” matured as a practice in the Obama Administration, and is continuing under President Trump, but there are institutional motivations for any and all bureaucrats, regardless of party affiliation, to frustrate the disclosure of records, particularly if they are embarrassing or raise the specter of media attention.

According to EPA Inspector General reports published in August 2015 and January 2011, the EPA’s FOIA regulations allow political appointees—including the Chief FOIA Officer and authorized disclosure official in the Office of the Administrator—to participate in approving requests and redacting records.  Is it any wonder that an agency follows its own long-established rules for processing requests it deems “sensitive”?  So long as the law gives the agency an opportunity to violate the spirit of the FOIA, the agency will take advantage of that discretion, even if it means violating statutory timelines for responding to requesters.

When Administrator Pruitt directed his staff to involve itself with the disclosure of records, he continued a tradition of obstructing the public’s right to access government information.  He deserves the criticism he has received.  But focusing on Administrator Pruitt’s (or President Trump’s) regulatory agenda, or his personal views on hot-button topics like global warming, obscures the underlying problem and makes it more difficult to reach consensus on how to address the real issues.  The FOIA and implementing regulations, for one, need to prohibit “sensitive review,” or at least provide serious restrictions on its implementation.  And guidance from the Department of Justice should address the troubling aspects that sensitive review can present.  This should be part of a solution that everyone who believes in transparency can accept.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Filed Under: Media, Blog Tagged With: , , , , , ,

2016-2018 FOIA Advisory Committee Issues Final Report

April 30, 2018 by

The 2016-2018 iteration of the federal Freedom of Information Act (FOIA) Advisory Committee, of which I was a member, has just issued its final report and recommendations.  The report takes the form of recommendations to the Archivist of the United States about how to improve the administration of the FOIA.  The Committee is composed of government FOIA staff and representatives from the requester community, and the report represents areas where those professionals’ ideas for improvement overlap.  The Committee also sought to foster dialogue between these two groups who otherwise do not have an opportunity to discuss these issues.

The Committee’s Recommendations

Improving proactive disclosure. The Committee recommends that the Archivist direct OGIS to publish as a best practice that agencies proactively post specific categories of records, including calendars of top agency officials, unclassified reports provided to Congress, FOIA logs, and other categories identified below. The best practice also offers methods to ensure FOIA logs are most useful, and provides considerations for agencies when identifying additional areas for proactive disclosure.

Balancing proactive disclosure and accessibility obligations. The Committee recommends that the Archivist direct OGIS to publish a best practice encouraging agencies to avoid the removal of documents already posted on agency websites that are not currently compliant with Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794d. Instead, the best practice would be to remediate such documents. When agencies are concerned about the practicality of remediation, the best practice would be to conduct an “undue burden” analysis by balancing Section 508 with their FOIA statutory obligations; the Rehabilitation Act allows agencies to release electronic documents that are not Section 508-compliant if rendering them compliant would “impose an undue burden” on the agency.

Improving FOIA Searches. The Committee recommends that the Archivist address the lack of public information about current methods and technologies agencies use to search for responsive records by: (1) requesting that the U.S. Department of Justice’s (DOJ) Office of Information Policy (OIP) affirmatively collect this type of information in next year’s Chief FOIA Officer (CFO) Reports, and (2) recommending that the CFO Council work with the Chief Information Officers (CIO) Council to explore the technological issues related to searches and to promote best practices. The Committee further recommends that the Archivist suggest a modification to the Federal Acquisition Regulation (FAR) to ensure that all agencies consider FOIA obligations when acquiring electronic records management software and that the Archivist also direct OGIS to examine and report on the use of appropriate FOIA performance standards for federal employees.

Making efficient use of agency resources. The Committee recommends that the Archivist direct OGIS to publish as best practices a number of identified strategies to ensure agencies maximize the use of available resources. These best practices address several issues, including staffing, career incentives, workflow, accountability, and technology.

The full report is available here.

James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute.  He was a member of the 2016-2018 FOIA Advisory Committee.  You can follow him on Twitter @JamesValvo.

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