The Obama administration has come under fire in recent weeks for its failure to publicize the “Certificates of Demonstrated Competence” that the State Department fills out and submits to the Senate Foreign Relations Committee prior to nomination hearings for foreign ambassador candidates. The American Foreign Service Association, a labor union for diplomats, has filed two FOIA requests as of February 28 asking for release of these documents, but the administration has not yet responded. The union is concerned with the recent nomination of ambassadors to Iceland, Argentina, and Norway, each of whom has limited if any experience in diplomacy but has raised a significant amount of money for President Obama’s presidential campaign efforts. The State Department has maintained that it is working within parameters of the FOIA statute, which requires responses to FOIA requests on a first-come, first-served basis. It has noted that more than 18,000 FOIA requests are received by the government each year, requiring a great amount of time and resources to sort through. Not persuaded by the government’s claims, however, AFSA has threatened to sue if the requested documents are not revealed by an imposed deadline. The State Department has refused to disclose when it plans to respond to the outstanding FOIA requests for this documentation.
This story is particularly important in light of the bill recently passed by the House, which intends to simplify and expedite the FOIA request process. The bill would create a “presumption of disclosure” for all FOIA requests, consistent with a recent executive memorandum from President Obama. Perhaps more importantly, the FOIA Oversight and Implementation Act of 2014 would expand the online platform for FOIA requests and centralize the requests in a single online web portal supervised by the Office of Management and Budget. Essentially, the bill would remove the current hurdles of inter-agency coordination and communication that currently obscure the FOIA process and lead to major lags in response time to FOIA requests. Furthermore, the web portal would permit updated tracking of requests in the system, granting submitters knowledge of where their specific requests stand in the process and greatly increasing the transparency of the system. Finally, the bill would establish an Open Government Advisory Committee that would be responsible for creating an ongoing dialogue about the effectiveness of FOIA and potential reforms to the statute.
These proposed reforms to the FOIA statute would seemingly prevent situations like the one discussed earlier involving President Obama’s choices for foreign diplomats. Under the new statute, AFSA would no longer have to constantly press the State Department about its requests through the media, but rather it would be able to submit its requests online and track them fully throughout the review process. In addition, the whole system would be sped up by the centralization proposed in the bill, so that AFSA would likely have already received a response to its requests under the new legislation. Because FOIA was originally intended to shed light on some dark areas of the federal government by allowing access to previously undisclosed information, it seems appropriate that the system itself should be transparent enough to permit relatively quick and painless responses to disclosure requests. If the proposed bill should pass through Congress, we will hopefully begin to see the development of such transparency.
This article discusses Edward Snowden’s recent Google Hangout event at SXSW 2014. The former CIA and NSA employee, now infamous for whistleblowing and disclosing thousands of classified documents revealing a global surveillance program run by the NSA and other government agencies, addressed a crowd of more than 7,000 SXSW attendees and countless others via live stream Monday morning. Through a live video feed broadcast from an undisclosed location in Russia (and bounced through many proxies around the world to help maintain location anonymity) Snowden spoke to the audience with Chris Soghoian, the principal technologies at the ACLU, and Ben Wizner, the director of the ACLE’s Speech, Privacy and Technology Program.
Snowden used this platform as a sort of call to arms to the tech community, calling on them to create solutions to privacy violations that would be accessible by the average Internet user. Snowden and Soghoian stated that many of the tools that currently exist to protect privacy and security online are too difficult for the average person to use; they need an easier way to encrypt their data. According to Snowden, the out of the box solutions currently available to the average user are not effective at circumventing the NSA’s surveillance programs. In response to a question asking what steps the average Internet user can take today, Snowden suggested that people encrypt their physical hard drives and networks, and use the program Tor to encrypt their web traffic. (For more on Tor, see this article from The Guardian.)
Ultimately, Snowden believes in order to combat mass surveillance, “we need to think of encryption not as an arcane, dark art, but as a basic protection”. Encryption alone will not defend against a targeted spy attempt against an individual, but the presenters believe it is the best strategy to defend against mass surveillance, as it will make it too expensive to spy on everyone. Snowden believes that by forcing the government to focus not on mass monitoring and data collection, but on the targeted surveillance of suspects, the surveillance programs will pose less of a privacy threat to average citizens and will also be more effective at preventing crimes. Snowden claims that if the NSA focused less on mass surveillance, it might have been able to prevent the Boston Marathon bombings.
The event also included discussion on data collection by private companies and accountability standards for government organizations. Snowden concluded his presentation by commenting on the motivation behind his decision to leak the NSA documents that lead to his worldwide notoriety and exile. “I took an oath to support the Constitution, and I felt the Constitution was violated on a massive scale,” he said. “The interpretation of the Constitution had been changed in secret to ‘no unreasonable search and seizure’ to ‘any seizure is fine, just don’t search it’ and that’s something that the public ought to know.”
Article by David Kravets
The Obama administration’s newly professed commitment to transparency was called into question recently when the Office of the Director of National Intelligence (ODNI) refused to produce documents pursuant to a FOIA request for information about third-party proposals for managing NSA cell-phone metadata.
The backstory: On January 17th, President Obama announced that he would explore several of the recommendations set forth by an outside review group he assembled to evaluate the NSA’s current practices and identify areas for reform. One such recommendation would remove vast stores of bulk data from the government’s control and instead enlist third parties or cell phone service providers to store the data and pass on small bits of information to the government in response to specific queries. Obama expressed skepticism at the feasibility of such arrangement but instructed the intelligence community and the attorney general to develop options and report back.
In early February, ODNI chief James Clapper put forth a Request For Information (RFI) soliciting information “about existing commercially viable capabilities” for storing telephone metadata. Twenty-eight proposals were received by the end of the submission period on February 12th. Wired magazine immediately submitted a FOIA request seeking release of these documents. Two weeks later, Wired received the response that the ODNI was withholding the material in its entirety.
In its denial, the ODNI cited FOIA exemptions (b)(4), which corresponds to trade secrets and confidential commercial data, and (b)(6), which applies to personnel and similar files which release would cause an “unwarranted invasion of personal privacy.” Wired contests the validity of such exemptions given that the RFI explicitly advised responding companies to “ensure that the submitted material has been approved for public release.” Wired is currently appealing the denial.
A February 25th article by Nate James of the National Security Archive examines the FOIA Oversight and Implementation Act, recently passed by the House and presently under review by the Senate Committee on the Judiciary. Despite well-documented frustration with the government’s general approach to issues of privacy, this FOIA reform bill has attracted relatively little media attention. James offers a useful analysis of how the bill in present form would improve FOIA and how, more notably, it would not.
First, James approves of a provision requiring all agencies to update their FOIA regulations within 180 days of the bill’s passage. Many agencies have exacerbated FOIA’s shortcomings by failing to update regulations to reflect policy changes, including those required by the OPEN Government Act of 2007. The Federal Trade Commission, for instance, last updated its regulations in 1975. Given that society now depends more than ever on the free transmission of information, this sort of administrative inaction should not be taken lightly.
Section Three of the bill calls for the creation of an online FOIA request system, enabling citizens to issue and track requests for all federal agencies through one “centralized portal.” While this system would almost certainly make FOIA more efficient and user-friendly, James urges Congress to “take the final, logical step and require that agencies join the 21st century” by posting all disclosures online, thereby extending access from a single requestor to the entire public, at no additional expense. (First-party releases would, of course, be excluded).
James makes a good point. It is difficult to conjure up a legitimate basis for not posting disclosures online for the general public, such that “a release to one is a release to all.” Indeed, FOIA’s mandate for granting disclosures presupposes a right of access to all members of the public, not merely those willing and able to make requests. Online posting would more directly stimulate public debate and render FOIA more transparent, while avoiding redundant disclosures and lowering operating costs. Furthermore, when it comes to keeping the government in check, there is great power in numbers, for the gaze of a thousand voters is more difficult to ignore than the gaze of one. As James insinuates, excluding such a policy from the bill undercuts the administration’s purported commitment to a “new era of openness.”
The bill does codify a general “presumption of disclosure,” a policy previously articulated in a 2003 DOJ memorandum from former Attorney General John Ashcroft. The presumption’s practical effect is unclear, however, since the burden of nondisclosure already rest with the government. Perhaps it was meant as a symbol of the administration’s renewed commitment to government transparency, to diffuse throughout the 101 agencies subject to FOIA. Of course, achieving government transparency requires more than airy declarations and symbolic gestures; more practical changes would focus on narrowing FOIA’s various exemptions.
To that end, James targets a few exemptions he believes are particularly in need of reform. The first is provision b(3), covering all information “specifically exempted from disclosure” by other statutes. James points out that no fewer than 170 such statutory exemptions are triggered by b(3), covering a broad range of peculiar subject matter, from “cigarette additive information” to “obscene matter” to “information on watermelon growers.” As an alternative to b(3)’s categorical exemptions, James proposes the use of a judicial “harm test,” which would balance the government’s interest in nondisclosure with the public’s interest in learning the requested information. James also calls for revision of exemption b(5), excluding all “inter-agency or intra-agency” communications. To be sure, the sheer volume of information implicated by b(5) is enormous, and there is little to prevent agencies from exploiting this exemption prospectively, by framing documents as “internal” memoranda to provide basis for future nondisclosure.
On the whole, I agree with James: the FOIA Oversight and Implementation Act is a small, yet significant step in the right direction. To achieve more meaningful reform, Congress must target FOIA’s capacious exemptions.
House Resolution 1211, the FOIA Oversight and Implementation Act of 2014, received unanimous approval in the House of Representatives on February 25, 2014. The bipartisan bill was co-sponsored by Darrell Issa (R-CA) and Elijah Cummings (D-MD).
The bill would establish new procedures to increase the speed and efficiency of Freedom of Information Act (FOIA) requests including a centralized portal for filing FOIA requests under the oversight of the Office of Management and Budget (OMB) as well as mandating public disclosure of information when information is released to an individual pursuant to their FOIA request.
The bill reached the Congressional floor in response to the following Executive Letter issued by President Obama: http://www.whitehouse.gov/the-press-office/freedom-information-act. In the letter, President Obama advocates for a clear policy position that when in doubt, agencies should disclose requested information rather than maintaining confidentiality. He obliquely addresses concerns about the retention of embarrassing or otherwise non-confidential material and encourages the Department of Justice (DOJ) and OMB to implement new policies encouraging full and frank disclosure. For a more in depth look at these issues, consider the 2011 study completed by the American Civil Liberties Union comparing non-redacted information disclosed by Wikileaks with the same documents obtained by subsequent FOIA requests. https://www.aclu.org/wikileaks-diplomatic-cables-foia-documents.
In its current form, there may be some concern about the House bill’s centralization of the FOIA process through OMB. An argument might be made that this centralization could tighten the reins on FOIA disclosures; however, by exposing the request to both OMB and the agency holding the requested information, it is likely that the agency will be more likely to disclose non-confidential materials that may otherwise have been retained in the interest of the particular agency. Similar concerns might be raised about the provision for full public disclosure in response to a FOIA request. Where perhaps an agency might have been less circumspect when disclosing to a single individual, disclosure in a public forum may create a presumption against broad disclosure and undercut President Obama’s push for broader disclosure.
If the bill passes the Senate and is enacted, the merits of these procedural changes may be evaluated. In combination with increased Executive Branch oversight through the DOJ, the bill will hopefully act to bring greater transparency and efficiency to the FOIA process.
The Centers for Medicare & Medicaid Services (CMS) is reversing its long-standing policy on the release of Medicare billing data. Under its previous policy, the agency would not disclose physician payment data in response to Freedom of Information Act (FOIA) requests, finding the public interest insufficient. This was largely influenced by the permanent injunction issued in Florida Medical Association, Inc., et al. v. Department of Health, Education, and Welfare, et al. (M.D. Fla. 1979). There, the court reasoned that physicians had a compelling right to privacy that would be violated by the release of such payment information. The injunction was eventually dissolved by the Middle District of Florida on May 31, 2013, after media outlets investigating alleged fraud and abuse by physicians pushed for the release of the data. In light of this, CMS reversed its policy in a January 17, 2014 notice, which goes into effect on March 18. FOIA requests will now be reviewed on a case by case to determine if “exemption 6” applies. FOIA Exemption 6 protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
This touches upon the common tension between the public interest in disclosure and basic privacy interests. If the dialogue leading up to Sunshine Week (March 16-22) is any indication, physicians may experience further exposure of their coding and billing patterns as efforts to strengthen FOIA gain momentum. Just last month, the FOIA Oversight and Implementation Act passed unanimously in the House. The proposed legislation hopes to address some of the concerns brought up again during the March 11 Government Transparency hearing chaired by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. There, experts testified about a “culture of obfuscation,” extensive backlogs, and increased use of FOIA exemptions to prevent disclosure. A recently released federal agency scorecard by the Center for Effective Government supported this testimony, reporting long delays, inadequate regulations, and lack of user-friendly websites.
The FOIA Oversight and Implementation Act would make it more difficult for agencies to withhold information and move more FOIA processing online. Changes include a presumption of openness which requires agencies to justify withholding information rather than requiring the public to justify release, a centralized online portal for all information requests, and the publication of documents requested three or more times. If such reforms come to pass, CMS will find it more difficult to deny requests for physician billing information and this previously unavailable data is certain to become more easily accessible.
Last April, the U.S. Court of Appeals for the District of Columbia ruled that in order for a government agency to comply with the FOIA deadline for a determination within 20 days, the agency’s response must be meaningful. Under FOIA, the requester must exhaust administrative appeals within the agency before the requester can can sue the agency in federal court for not producing documents. If the agency complies with the request by the deadline, the agency has complied with its requirements under the statue and a requester must appeal within the agency to appeal the decision. If the agency does not comply with the request, the exhaustion requirement is satisfied and the requester may sue the agency in federal court. The court considered what constitutes a sufficient determination.
The FEC and the DOJ argued that it is sufficient response to inform the requester by the deadline that the agency will be producing nonexempt documents in the future and claiming exemptions. However, the D.C. Circuit held that agencies must state which documents they are producing, which documents they are withholding and why. The article argues that the interpretation of the statue proposed by the government would undermine the purpose of the statue, as allowing agencies to answer requests with vague language does not further the policy objectives of FOIA.
Lejla Sarcevic, Washington Examiner
The Senate Judiciary Committee is currently reviewing the FOIA Oversight and Implementation Act of 2014. The bill, which passed the House unanimously in February, is being strongly advocated for by journalists who believe that the current FOIA law is ineffective. This article highlights the criticisms from the journalism community that were presented to the Senate Judiciary Committee by David Cuillier, the President of the Society of Professional Journalists, as well as from other individuals.
A majority of the criticisms of the current FOIA system is the backlog of requests that have built up as a result of the lack of oversight. The Center for Effective Government recently graded the 15 federal agencies that receive the most FOIA requests, placing a large amount of weight on the an agencies’ ability to process information requests in a timely fashion. This report card resulted in 7 of the 15 federal agencies receiving failing grades.
In response, the Departments of Justice’s Office of Information Privacy, the group tasked with overseeing FOIA compliance within the executive branch, pointed out that of the 99 agencies subject to FOIA, 29 had no backlog at all and 73 have a backlog of a one hundred requests or less. Nevertheless, the backlog of FOIA requests does not seem to be getting any better. As the article points out, the DOJ’s own backlog has worsened over the past three years.
Members of the Senate Judiciary Committee also expressed their displeasure with the current system. Senator Chuck Grassley (R-IA) said there was a culture of obfuscation” among FOIA officials and Committee Chairman Patrick Leahy (D-VT) pointed out a 41% increase in the federal agencies use of FOIA exception 5. These issues combined with the current climate of public skepticism of government and a weakening of public support for government secrecy, even for issues of national security, seems to set the stage perfectly for Congressional reform of FOIA.
The amendments proposed by the FOIA Oversight and Implementation Act of 2014 would address the failures of the current FOIA system and the backlog that has been created. One of the proposed amendments would give increased oversight to the Office of Government Information Services of the administration of FOIA requests. The bill would also create a presumption of disclosure for all FOIA decisions with an exemption only for a “foreseeable harm from disclosure.” This change shifts the burden of proof from the requester to the government agency. The amendments would also require the Office of Management and Budget to create a single website for submitting FOIA requests and checking on the status of such requests. The bill would require the agency to release information publicly once it is released to individual journalists.
It doesn’t seem like this bill will face any opposition from the President. The bill itself has been described as a mere codification of President Obama’s executive memorandum issued January 21st, 2009, the President’s first full day in office. With this in mind and the bill now sitting with the Democratically controlled Senate, it seems that amendments to the current FOIA system are imminent. Only time will tell if these amendments will bring the changes in government efficiency and transparency that the journalism community and the American public as a whole are hoping for.
 Hadas Gold, House unanimously passes FOIA bill, Politico (Feb. 26, 2014, 10:45 AM), http://www.politico.com/blogs/media/2014/02/house-unanimously-passes-foia-bill-184049.html
 This factor accounted for fifty-percent of the grade. The other half of the grade was based off of the rules an agency develops to shape its disclosure practices and the user-friendliness of the agency’s website. Center for Effective Government, Making the Grade: Access to Information Scorecard 2014 (March 2014), http://www.foreffectivegov.org/files/info/access-to-information-scorecard-2014.pdf
 Exception 5 allows agencies to withhold information that is protected by legal privilege. In 2013 this exception was used more than 79,000 times. Lejla Sarcevic, Freedom of Information Act law ‘terribly, terribly broken,’ expert tells Senate panel, The Washington Examiner (Mar. 12, 2014, 3:34PM) (quoting Senator Patrick Leahy), http://washingtonexaminer.com/freedom-of-information-act-law-terribly-terribly-broken-experts-tell-senate-panel/article/2545559
 This memo focused a great deal on the “presumption of disclosure” and the need for new guidelines governing FOIA. Memorandum from President Barack Obama to Heads of Executive Departments and Agencies, Freedom of Information Act (Jan. 21, 2009), http://www.whitehouse.gov/the-press-office/freedom-information-act