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07/18/2013

FOIA Requesters Misled by Military to Waive Appeal Rights

UPDATE: We added clarification that our numbers concerning SOCOM’s FOIA appeals were taken from FOIA.gov

At least two military offices have been found to use a puzzling FOIA request form that may be an attempt to get requesters to give up their rights to appeal FOIA decisions.

The request forms, which are included below, appear on the FOIA web sites of the U.S. Army Special Operations Command (SOCOM) and the U.S. Navy’s Space and Naval Warfare Systems Command (SPAWAR). In both forms, the offices ask requesters to agree to accept “a releasable copy” of the requested records; however, they fail to expressly inform requesters that electing this option may legally prevent them from appealing if the agency withholds any records.

If requesters do not agree in advance to accept “releasable” records, the forms indicate that their request will be “referred to the appropriate reviewing authority for a final review and release determination.” This is precisely the procedure that the Department of Defense’s FOIA regulations already require. Specifically, all Department of Defense FOIA requests must be reviewed by a designated “Initial Denial Authority,” and all decisions to withhold requested records must be explained in sufficient detail so as to allow requesters to decide whether to appeal.

Making matters worse, SOCOM’s version of the FOIA request form implies that the referral procedure described above will dramatically increase the time needed to process the request, noting that “it could take a year” for a decision — essentially coercing the FOIA requester to select the “releasable” records option if they want to receive the production in a timely manner. As a result SOCOM’s form has effectively minimized FOIA appeals. During fiscal years 2008 to 2012, SOCOM adjudicated 933 FOIA requests, yet it received zero administrative appeals according to FOIA.gov. Do the zero administrative appeals accurately reflect that in fact there were no appeals by requesters during this four year period regardless of whether they accepted the “releasable” records option, or are these statistics the result of virtually all 933 FOIA requesters abdicating their rights to appeal?

Notably, these forms do not conform to the FOIA request template recommended by the Department of Defense’s main FOIA office. Nor are they even consistent with sample request letters provided by the FOIA offices of the Department of the Navy or the Department of the Army. In the words of Victor Hugo, no army can withstand the strength of an idea whose time has come. It is time for these forms to go.

SOCOM FOIA Request Form

SPAWAR FOIA Request Form

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07/9/2013

Secret Pentagon policy may delay responses to Freedom of Information Act requests

Department of Defense FOIA offices are prohibited from responding to “significant” FOIA requests having “departmental level interest” without approval from the Pentagon, according to a policy document obtained by Cause of Action from the DoD’s Inspector General.

A “significant” request is defined by the policy document as one where, in the judgment of a FOIA office, “the subject matter of the released documents may generate media interest and/or may be of interest or potential interest to DoD senior leadership.” This can include requests regarding “the current administration (including request for information on Senator Obama) previous administrations, and current or previous DoD leadership.”

The policy document further provides that if a “significant” request generates “departmental level interest,” the DoD FOIA office handling the request must forward its proposed FOIA response and all responsive records for departmental level clearance. Departmental level clearance is done at the DoD Freedom of Information Policy Office (DFOIPO) which is responsible for the formulation and implementation of FOIA policy guidance for DoD. The office was created in 2006 after President Bush signed an Executive Order aimed at improving the FOIA process, though the policy document in question was drafted only after President Obama took office.

The Pentagon’s FOIA review policy was initially revealed by the IG to Congress in 2010 in response to an inquiry concerning the politicization of FOIA. The IG did not comment on this policy or on DoD’s FOIA practices; it merely forwarded documents to Congress. Notably, neither the IG nor the Pentagon has proactively disclosed any of this information to the public.

This secrecy is especially troubling with respect to DFOIPO in light of its mission. Not only is this policy document omitted from a long list of “FOIA Policy Guidance” on DFOIPO’s Web site, but none of DFOIPO’s other publicly available FOIA material even mention this Department-wide policy. Those documents include DoD’s “Freedom of Information Act Handbook,” its annual FOIA reports to the Department of Justice, as well as a bi-annual newsletter “DoD FOIA News.” This is hardly the stuff of which transparent administrations are made, let alone one that claims to be the most transparent in history.