Public Comments Submitted by Michael Ravnitzky on August 30, 2024
Dear FOIA Advisory Committee Members,
I am writing to submit comments in advance of the upcoming public meeting on
September 9, 2024. I would like to bring to your attention my article titled
“The Right to Know: A FOIA Bill of Rights,” published by MuckRock.com on
August 6, 2024.
https://www.muckrock.com/news/archives/2024/aug/06/the-right-to-know-a-foia-bill-of-rights/
This article proposes a FOIA Bill of Rights, outlining what I regard as
essential rights for requesters and setting clearer expectations for the FOIA
process. I would appreciate if the Committee members could familiarize
themselves with the Bill of Rights, and include these issues in future
Committee discussions and planning.
The FOIA Bill of Rights serves as a valuable framework to identify and
address the real-world challenges faced by requesters when seeking access to
records from federal agencies. Many requesters encounter delays, denials,
overcharges, and inconsistent communication, which can lead to frustration
and even litigation. While the FOIA statute and agency regulations may cover
a few of these issues, the problems addressed in the Bill of Rights still
persist and pose problems for requesters when using the statute.
By reviewing and considering the principles outlined in this article, the
Committee can gain insights into these common issues and formulate practical
solutions that enhance transparency, fairness, and efficiency in the FOIA
process.
Some of these issues could be best addressed through various processes, such
as improving agency regulations, updating the FOIA regulation template
disseminated by the DOJ Office of Information Policy, enhancing agency
practices and staff training, or sharing best practices.
I encourage the Committee to review the FOIA Bill of Rights and use it as a
starting point to identify areas where improvements can be made. By
addressing these challenges, we can reduce the incidence of FOIA
Administrative Appeals, lessen the need for judicial review, and ensure that
the FOIA process remains a robust tool for public participation, oversight,
and trust in government actions.
I would be pleased to answer any questions you may have on this subject.
Michael Ravnitzky
Silver Spring, Maryland
mikerav@verizon.net
FOIA BILL OF RIGHTS
The Freedom of Information Act is a powerful tool that allows any person to
request access to records from any federal executive branch agency. FOIA is
essential for democracy, as it enables public participation, oversight and
trust in government actions and decisions. FOIA already provides certain
rights to requesters, and most FOIA officers and staff are helpful and
dedicated to public service.
Nevertheless, the execution of the law falls short in certain areas. Many
FOIA requesters face challenges and frustrations when trying to obtain the
records they seek. Agencies may delay, deny or overcharge for records, or
provide incomplete or inadequate responses.
Requesters may also encounter confusion, inconsistency, or lack of
communications from agency staff. Some situations frequently occur that cause
tremendous frustration and obstacles to requesters, and sometimes those
problems lead to needless administrative appeals and even litigation.
To help FOIA requesters overcome these obstacles and exercise their right to
obtain records, I propose a FOIA Bill of Rights, solidifying the essential
rights for requesters and the clear expectations that requesters should have
when submitting a FOIA request.
This FOIA Bill of Rights can be used as a guide by both agencies and
requesters and can be included into the FOIA guidance provided by the
Department of Justice to agencies, and its provisions and protections even
added to the FOIA statute.
Communication and Transparency
1) Requesters have the right to a final response letter that includes the
case number, a description of the subject of the request, and the
administrative appeal rights.
2) Requesters have the right to an estimated completion date for a request
and its position in the processing queue upon written request.
3) Requesters have the right to know the total number of pages withheld from
a partial or full denial.
Openness and Fairness
4) Requesters have the right to have all requests processed in accordance
with the presumption of openness, and with the foreseeable harm test applied.
5) Requesters have the right to seek electronic searches of email without the
agency requiring undue constraints.
6) Requesters have the right to release decisions that are based on actual
personal examination of responsive documents rather than solely on
second-hand information or speculative or hypothetical judgments.
Record Quality
7) Requesters have the right to receive records that are not locked or
encumbered by file restrictions, unless a legitimate articulable reason for
doing so exists.
8) Requesters have the right to get released records that are scanned with
reasonable care, and with reasonable image quality under the circumstances.
9) Requesters have the right to receive digital records in the format of
their choice, if the agency can produce that format without extraordinary
effort.
Processing Timeliness
10) Requesters have the right to have requests that are referred or remanded
processed according to the original submittal date.
11) Requesters have the right to have requested records retrieved reasonably
promptly after submission, to avoid loss or destruction of records following a lengthy delay in processing.
Fees
12) Requesters are owed a good faith fee categorization and not a default categorization.
Agencies should consult with the requester for clarification of the fee category, if the agency is uncertain.
13) Requesters in a noncommercial fee category have the right not to be charged for review fees.
14) Requesters have the right to a complete and detailed fee breakdown of applicable fees.