Posts Tagged ‘FOIA’
Thursday, April 15th, 2010

The Senate Judiciary Committee approved by voice vote legislation Thursday that would take steps toward improving executive branch Freedom of Information Act practices.

The Faster FOIA Act would create an advisory panel to study agency backlogs in handling FOIA requests. The bipartisan bill would direct the panel to provide Congress with suggestions for improving the FOIA process.

“I have said many times that open government is neither a Democratic issue, nor a Republican issue — it is truly an American value and virtue that we all must uphold,” panel Chairman Patrick Leahy (D-Vt.), the bill’s sponsor, said in a statement.

Sen. John Cornyn (R-Texas), a co-sponsor of the legislation, said the legislation is an “important step” toward improving the openness of federal agencies

“Citizens requesting public information should not be treated like nuisances or pests,” Cornyn said. “They should be treated like valued customers.”

Last month, the National Security Archive at The George Washington University ranked the Justice Department among the most transparent government agencies. But the DOJ processed fewer FOIA requests in fiscal 2009 than it did in 2008.

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Wednesday, April 7th, 2010

The Department of Justice will create a Freedom of Information Act dashboard to visually demonstrate the progress made by government agencies in processing FOIA requests.

The online “visual report card” was announced Wednesday as part of of the DOJ’s Open Government plan.

In December, the White House issued an open government directive, which required agencies to take public suggestions on increasing transparency. All agencies had to come up with an open government plan by April 7. The Justice Department used an online feedback system called Ideascale to set up a Web site, OpenDOJ, to gather suggestions from the public.

The DOJ’s “flagship initiative,” generated by a suggestion from a member of the public, will be the FOIA Dashboard, which will graphically display the progress of various government.

In a blog posting announcing the Open Government plan, DOJ’s new media specialist Tracy Russo highlighted three steps that the Justice Department will take immediately to increase transparency: making significant court filing available on the DOJ’s Web site; posting a calendar of the Attorney General’s meetings and activities; and publishing the underlying data that is summarized in office or division reports.

According to the plan, the DOJ Office of Public Affairs will post court filings as soon as they are filed to make them more accessible to the public.

“The public will often learn about these filings from news reports, but those reports rarely give adequate context, and even more rarely give direct access to the very actions they are describing,” the plan says. “Federal courts and numerous commercial services provide access to the documents, but often only at a cost and regularly only with some delay. The department is committed to making these papers more readily available. This information should be available to the public, so that Americans can review the documents themselves and gain a full understanding of the department’s actions.”

The Attorney General’s calendar will be posted on a monthly basis, though some sensitive meetings will not be noticed, Russo said.

“Redactions will be kept to a minimum, consistent with the principles laid out in the Attorney General’s FOIA Guidelines. While there will always be aspects of the Attorney General’s responsibilities that cannot be disclosed publicly, lest they compromise important national security, law enforcement or litigation interests, there is much that can, and should be, disclosed,” Russo wrote.

A PDF version of the plan is embedded below, and the Justice Department has created a Web site explaining the plan.

Doj Open Governement Plan

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Wednesday, April 7th, 2010

Although Attorney General Eric Holder is pushing government agencies to expedite Freedom of Information Act requests, the Department of Justice processed fewer requests in fiscal 2009 than it did in 2008.

The 2009 figures were disclosed in an annual report to Congress on Justice Department FOIA requests. Associate Attorney General Thomas Perrelli also sent two letters to House Speaker Nancy Pelosi and Vice President Joe Biden last week to accompany the report.

According to the report, the department processed about 60,200 requests in fiscal 2009, a slight decrease from the nearly 61,300 requests processed in fiscal 2008. More than 6,200 requests were pending at the beginning of fiscal 2009. By the end of the fiscal year, that number had jumped to more than 7,400 — an 18 percent jump.

While the number of requests processed in 2009 was slightly lower than in the previous year, it was still the second highest number processed since 2002, according to a report (PDF) issued by the DOJ’s Office of Information Policy chief Melanie Pustay last month.

Justice Department spokeswoman Tracy Schmaler said it takes longer to process requests since a new Obama administration policy on FOIA requests was implemented last year. Both President Barack Obama and Holder both issued memoranda in 2009 aimed at making the executive branch more transparent. The new policy instructs government lawyers to lean towards disclosure when reviewing requests.

The Holder memorandum rescinded then-Attorney General John Ashcroft’s Oct. 12, 2001 memo that told government lawyers the DOJ would defend any FOIA requests rejections so long as the decision had a sound legal basis.

Pustay said in testimony last month that federal agencies are continuing their efforts to reduce the FOIA request backlog. According to Pustay, the government’s overall backlog has been reduced by 50 percent since the new policy went into effect.

Speaking to government Freedom of Information Act officials last month, Holder said that “this past year has brought a shift in the way our entire federal government operates.”

While there is still a lot to be done, Holder said, the past year has “signaled the emergence of a government that’s striving to work more openly and more effectively for the people it serves.”

An independent audit by the National Security Archive at The George Washington University released last month named DOJ one of the few federal agencies to receive high marks for processing FOIA requests.

Andrew Ramonas contributed to this report.

Thursday, March 18th, 2010

Melanie Pustay (Andrew Ramonas / Main Justice)

The Justice Department official who oversees Freedom of Information Act matters told members of a House panel Thursday that the executive branch has taken significant steps towards increasing transparency, but still has room for improvement.

DOJ Office of Information Policy Melanie Pustay said federal agencies are continuing their efforts to reduce the FOIA request backlog, which she said has been cut by 50 percent since President Barack Obama and Attorney General Eric Holder both issued memoranda last year aimed at making the executive branch more transparent.

On Monday, the National Security Archive at The George Washington University released an independent audit of  how federal agencies handled FOIA requests. The DOJ, Department of Agriculture, Office of Management and Budget and Small Business Administration were the only federal agencies to receive high marks in the audit of 28 federal agencies.

“We still have work to be done. There is no doubt about it,” Pustay said. “But to have done this much on backlog reduction in one year, I think it’s quite a big accomplishment.”

Rep. Patrick McHenry of North Carolina, the ranking Republican on the House Oversight and Government Reform information policy, Census and National Archives subcommittee, said the audit shows that the Obama administration’s call for improved transparency has been disregarded.

“The administration’s message of openness and transparency does not translate into concrete improvements with FOIA,” McHenry said.

Pustay said that her office will be carrying out an extensive review of agency reports on FOIA handling. The Office of Information Policy is also distributing guidance to federal agencies on FOIA practices and holding training sessions with the agencies.

“As the lead federal agency responsible for implementation of FOIA, we at the Department of Justice are especially committed to encouraging compliance with the act by all agencies and fulfilling President Obama’s goal of making his administration the most open and transparent in history,” Pustay said.

The Senate Judiciary Committee also will take up legislation next Thursday that would create an advisory panel to study agency backlogs in handling FOIA requests. The bill, named the “Faster FOIA Act,” would order the panel to provide Congress with suggestions for improving the FOIA process.

“The FOIA is not perfect,” said Rep. William Clay (D-Mo.), who chairs the House subcommittee. “In the 40 years since the bill was enacted, Congress has continually reexamined its strength.”

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Monday, March 15th, 2010

The Justice Department ranks among the most transparent government agencies, according to an independent audit of executive branch Freedom of Information Act practices released by the National Security Archive at The George Washington University Monday.

According to the research institute, the DOJ filled about 5 percent more FOIA requests in full and 13 percent more requests in part during fiscal 2009 than it processed in fiscal 2008. The Department denied approximately 4 percent of requests in full.

(National Security Archive)

Last year, President Barack Obama and Attorney General Eric Holder both issued memoranda aimed at making the executive branch more transparent. Holder said Monday that the government must still be more transparent, but the past year has “signaled the emergence of a government that’s striving to work more openly and more effectively for the people it serves.”

“One year is too early to render a final judgment on how far President Obama can move the government toward openness, but this audit finds that much more pressure and leadership will be necessary, both inside and outside the government,” National Security Archive general counsel Meredith Fuchs said in a statement.

Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) will introduce legislation Monday that would create an advisory panel to study agency backlogs in handling FOIA requests. The bill, named the “Faster FOIA Act,” would order the panel to provide Congress with suggestions for improving the FOIA process.

DOJ Office of Information Policy Director Melanie Pustay also is slated to testify about FOIA trends before the House Oversight and Government Reform subcommittee on information policy, census and National Archives on Thursday.

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Monday, March 15th, 2010

Melanie Pustay, left, four representatives from various government agencies, Attorney General Eric Holder and Associate Attorney General Thomas Perrelli (photo by Ryan J. Reilly / Main Justice).

Speaking to government Freedom of Information Act officials Monday, Attorney General Eric Holder said that “this past year has brought a shift in the way our entire federal government operates.”

While there is still a lot to be done, Holder said, the past year has “signaled the emergence of a government that’s striving to work more openly and more effectively for the people it serves.”

The event in the Great Hall of the Justice Department’s Robert F. Kennedy Building featured representatives of the Treasury, Homeland Security and Defense Departments, the Environmental Protection Agency and the U.S. Trade Representative, who spoke about their agencies’ progress in implementing a March 2009 memorandum from Holder that made disclosure of information the default position for FOIA requests.

Associate Attorney General Thomas Perrelli and Melanie Pustay, Director of DOJ’s Office of Information Policy, also delivered remarks.

“The Justice Department, like other federal agencies, is currently hard at work in developing an Open Government Plan,” said Holder. “Shortly after taking office, the President issued a government-wide call for every department to identify and share new ways to open up for the public it serves. Our plan – which we look forward to releasing on April 7 – will serve as our answer.”

Wednesday, February 10th, 2010

Software company Privasoft has won a contract from the Department of Justice’s Office of Information Policy (OIP) to provide Freedom of Information Act (FOIA) processing software, according to a company press release.

Under the contract, OIP will use Privasoft’s AccessPro Suite to “facilitate the expedient processing of FOIA requests,” says Privasoft. The contract specifies an initial 40 users to be placed on a centralized automated FOIA response system.

The software, says Privasoft, “is a purpose-built software solution designed to capture, analyze, track, process and report on case work related to managing requests for information under such laws as FOIA.”

According to the company’s Web site, it provides software to several other federal agencies, including the Federal Labor Relations Authority, Minerals Management Service, the Federal Reserve Board and several divisions of the Agriculture Department.

Main Justice previously wrote about the Justice Department working with the Office of Government Information Services in its training of federal workers on how to handle FOIA requests. The office is within the National Archives and Records Administration.

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Wednesday, January 20th, 2010

The director of a new office devoted to improving government transparency said her staff is working closely with the Justice Department to educate  federal employees about resolving disputes over Freedom of Information Act requests.

The Office of Government Information Services opened in September, with an office located at the National Archives and Records Administration building in College Park, Md. Its tasks are to mediate disputes between FOIA requesters and federal agencies, review policies and procedures of administrative agencies under FOIA, review agency compliance with FOIA and recommend policy changes to Congress and the president to improve the administration of FOIA.

Miriam M. Nisbet, director of the Office of Government Information Services (photo by Ryan J. Reilly).

Miriam M. Nisbet, director of the OGIS, told Main Justice that her office is already participating in training for DOJ employees related to FOIA requests. She says the office is working on ways to ensure that federal employees know about its  existence.

“Our role is review of agency compliance, and as part of that role we will be and are working together with the Justice Department,” said Nisbet, who appeared at a panel discussion on the issue of transparency Wednesday morning at American University’s Washington College of Law marking the one year anniversary of the Obama administration.

Another panelist noted that it was essential that OGIS, the so-called “FOIA ombudsman,” is not in the Justice Department hierarchy.

“It’s important to have the OGIS outside of the Justice Department,” said Lydia Kay Griggsby, counsel to Sen. Patrick Leahy (D-Vt.). Griggsby said that the system allows OGIS to serve in an oversight role. She also said despite lingering concerns about secrecy, it was important to acknowledge that the government is in a “very different place” than it was under the administration of George W. Bush.

But other panelists noted that they see problems with government transparency under the Obama administration, some from longstanding issues related to FOIA requests.

Newsweek's Michael Isikoff (photo by Ryan J. Reilly).

“FOIA requests are kind of a crapshoot,” said Newsweek reporter Michael Isikoff. “There’s very little way of knowing how the process works.” He argued for the establishment of a FOIA requester advocate in federal offices, telling Nisbet that while OGIS was serving a role, “I don’t think you’re getting in the weeds at the level of individual FOIA requests.”

“It’s all well and good to promise transparency about what the last administration did,” said Isikoff, adding that it’s more important to look at government officials’ behavior when the administration is being asked for information on its own  actions.

A new policy on FOIA requests was outlined in a March 19, 2009, memo authored by Attorney General Eric Holder. It directed government agencies to presume disclosure of information, and even begin to proactively post documents online. ”First, an agency should not withhold information simply because it may do so legally,” Holder wrote in his memo.

But the transparency presumption hasn’t quite taken root, Associate Attorney General Thomas Perrelli acknowledged in a Senate Judiciary Committee hearing last Semptember. The new FOIA policy has been “broadly implemented, but I’m hesitant to say fully implemented,” he said.

In a previous interview with Main Justice, Nisbet said the system “doesn’t work the way we want it to …  It’s a pretty big architecture, and it’s not going to change over night. Do I believe [OGIS] will make a difference? Absolutely. But it’s not going to happen in a matter of months.”

Friday, January 15th, 2010

Plaintiff law firm Lieff Cabraser Heimann & Bernstein has filed a federal lawsuit seeking to compel the Department of Justice’s Antitrust Division to comply with the firm’s Freedom of Information Act request.

In the FOIA request, Lieff Cabraser had asked Justice Department to turn over subpoenas the agency sent in a price-fixing investigation involving manufacturers of CD and DVD drives.

Companies that make the drives, including Sony Corporation, Hitachi Ltd., and Toshiba Corporation, announced in October they had received subpoenas relating to an antitrust probe. The Justice Department also confirmed it was investigating the industry.

The Justice Department denied Lieff Cabraser’s FOIA request in November, citing a provision that bars release of information involving grand jury investigations.

Justice Department spokeswoman Gina Talamona declined to comment on the lawsuit, which was filed Jan. 4 in the Northern District of California. She said the investigation of the optical disk drive industry is ongoing.

Lieff Cabraser is not currently involved in litigation related to disk drives, but has sued the same companies in a separate case involving price fixing in the LCD panel market.

The firm appealed the FOIA denial and argued that, since the companies had publicly acknowledged the subpoenas, the reasons for the grand jury exemption didn’t apply.

“The government should provide these subpoenas,” Eric Fastiff, a partner at Lieff Cabraser in San Francisco who filed the lawsuit, told Main Justice. “There is nothing contained in them based on the public record that would violate the secrecy of the grand jury.”

He added: “The victims of the potential price fixing should be allowed to investigate their claims.”

According to the complaint, a Lieff Cabraser attorney contacted the DOJ earlier this month about the request. The agency was dealing with a backlog in FOIA appeals, the complaint said, and would review the appeal in a few weeks.

The suit is something of a long shot.

Organizations who go to court over denied FOIA requests have a good chance of success, but it is rare to get information from a grand jury investigation, said Lucy Dalglish, who heads the Reporters Committee for Freedom of the Press, an organization that provides advice on FOIA requests.

Parties who go to court “usually get at least a portion of what they are seeking,” Dalglish said, “but the government is not going to show you subpoenas if an investigation is still pending.”

But since Lieff Cabraser’s request covered not just grand jury subpoenas but administrative subpoenas as well, the agency may have overshot in denying the request outright, experts said.

In responding to Lieff Cabraser’s application, according to the complaint, the Justice Department said it could “neither confirm nor deny the existence of any records responsive” to the request.

“I’m afraid that the Antitrust Division’s position in this case is awfully thin at best,” said Daniel Metcalfe, who is executive director of the Collaboration on Government Secrecy at American University Washington College of Law, in an email to Main Justice.

“Grand jury subpoenas themselves are not ‘agency records’ subject to the FOIA,” he said, “but the FOIA request here and the Antitrust Division’s response appear to be broader than that.”

One of President Obama’s first acts as president  was to issue a directive to all executive branch agencies, including the Justice Department, to comply with the letter and the spirit of the FOIA law.

The complaint quotes from Obama’s memo: “In responding to requests under the FOIA, executive branch agencies…should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”

Attorney General Eric Holder followed Obama’s directive with guidelines for how government agencies should comply with the transparency directive.

Lieff Cabraser has also sued the Antitrust Division over a FOIA request involving information related to the division’s long-running investigation into municipal derivatives.

Updated 1/16/10 at 3:07 p.m.

Wednesday, October 14th, 2009
Miriam Nisbet

Miriam Nisbet

Two years after the Bush administration tried to neuter it, a government office that will mediate Freedom of Information Act disputes  finally has funding and a leader.

The Office of Government Information Services was created by the 2007 Open Government Act, a law strengthening the FOIA that was co-sponsored by Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Tex.).

The bipartisan measure was in response to government secrecy controversies during the Bush administration. Bush never liked it; he tried to end-run Congress’s intent by pulling the agency’s funding and putting it under the Department of Justice, rather than the more independent National Archives and Records Administration.

Bush’s fiscal year 2009 budget slated $1 million for the agency. But the office remained leaderless, and the money untouched.

That’s about to change. In June, the Obama administration appointed Miriam Nisbet as director of the office. And funding for the agency is now slated for $1.5 million for fiscal 2010.

The OGIS was created to “offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute,” according to the 2007 statute.

“People who live in the country and are governed by the government, they have to know what’s going on,” Nisbet said in an interview. “It’s got to be clear, the government has to be accountable, if democracy is going to work.”

Her agency will serve as what some are calling an “ombudsman,” and what Nisbet calls mediation. The office is on the front line between FOIA requesters and recipients.”There isn’t a good communication, a meeting of the minds, from either end of the process,” Nisbet said.

Nisbet’s appointment comes as part of a broader move by the Obama administration to reverse Bush-era restrictions on public access to government information. In particular, the administration has already repealed a restrictive FOIA policy put in place by Bush’s first attorney general, John Ashcroft, in this 2001 memo.

A new policy was outlined in a March 19, 2009 memo authored by Attorney General Eric Holder. It directed government agencies to presume disclosure of information, and even begin proactively to post documents online. ”First, an agency should not withhold information simply because it may do so legally,” Holder wrote in his memo.

But the transparency presumption hasn’t quite taken root, Associate Attorney General Thomas Perrelli acknowledged in a Sept. 29 a Senate Judiciary Committee hearing. The new FOIA policy has been ”broadly implemented, but I’m hesitant to say fully implemented,” he said.

The CEO of The Associated Press, Tom Curley, said in the hearing that journalists haven’t seen much change. “We in the news media are still finding federal agencies unresponsive to the declarations from the White House that government must become more open,” Curley said.

Nisbet took the helm at OGIS in September, after two years as director of the Information Services Division at the United Nations Educational, Scientific and Cultural Organization in Paris. Before UNESCO, Nisbet was legislative council for the American Library Association from 1997 to 2007. For five years previous, Nisbet was Special Council for Information Policy at the National Archives. From 1982 to 1994, she worked as deputy director of the Office of Information and Privacy at DOJ.

Her experience on either side of the FOIA throughout her professional career gives her a unique perspective, she said. “Librarians have been strong advocates for access to government documents since forever,” she said. “I can very much appreciate the government perspective of handling FOIA requests, because I did that, but I also appreciate the requester’s standpoint.”

She added: ”The system doesn’t work the way we want it to …  It’s a pretty big architecture, and it’s not going to change over night. Do I believe [OGIS] will make a difference? Absolutely. But it’s not going to happen in a matter of months.”