Public Comments Submitted by Robert Hammond on December 8, 2020
From: Robert Hammond
Date: Tues, December 8, 2020 at 9:35 PM (ET)
PUBLIC COMMENT, FOIA ADVISORY COUNSEL MEETING 12/10/2020
Open Agency FOIA Portal Request/Appeal Records to the Public
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Please post and address during the meeting the following comments, which are related to “REPORT TO THE ARCHIVIST OF THE UNITED STATES, Freedom of Information Act Federal Advisory Committee 2018-2020 Committee Term Final Report and Recommendations July 9, 2020.”
This post relates to Recommendation #12: “We recommend that agencies release FOIA documents to the public on their FOIA websites and in FOIA portals in open, legible, machine-readable and machine actionable formats, to the extent feasible.”
- I suggest that this recommendation also be made to Congress to mandate that Agencies provide open, searchable access to their FOIA portals without blocking public view of requester names, request details, correspondence, and release of records. “Release to one, release to all.” See amplification regarding needed systems changes to FOIAonline.gov herein, which have been sent to the Environmental Protection Agency (EPA) Program Management Office for FOIAonline.
- The FOIA Improvement Act required a single FOIA portal.
- Is that portal FOIAoline.gov?
- What is the status of single FOIA portal implementation?
- The following recommended system change requests for FOIAonline.gov have been submitted to EPA through the FOIAonline.gov helpdesk without any reply from the Agency. A copy of this correspondence has also been provided to EPA.
Subject: EPA Priority System Change Requests Needed – FOIAonline.gov,
I would like to speak to the government employee responsible for System Change Requests to the FOIAonline.gov application.
Background.
The goal of FOIA is the PUBLIC RELEASE OF RECORDS. The names of the FOIA requesters as courts have held that under the FOIA requesters do not have an expectation of privacy. Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981). FOIAonline must serve as a platform for public release of records. Other platforms, such as MUCKROCK.com allow a requester to embargo a request from public view for a certain period of time as a means for media to protect their information prior to publishing stories. However, in FOIAonline the “Description Available to the Public flag is set to “No” on default. Set this flag to “Yes” in order to make the description publicly searchable and viewable.” Agencies do not change the flag even for completed requests, defeating the purpose of FOIA. The Agency should not have any ability to control the “Description Available to the Public” or the Requester Identity or to alter the “Request Description” for requests submitted though the FOIAonline.gov portal. These decisions should be entirely up to the Requester. All records associated with the Agency’s receipt of, action taken, exemptions claimed, and records released should be publicly available. Failure to do so also impedes accountability wherein anyone should be able to match the dates received and completed along with the Agency’s Raw Data supporting its annual FOIA report to document those cases of clear inaccurate Annual FOIA reporting to the Attorney General of the United States.
Refer to attachment:
Delivery Order # GS00Q09BGD0022
Task Order # EP-G11H-00154
Project # TDD 11.10
Version 0.10
June 3, 2016
FOIAonline Agency User Guide
1. “Description Available to the Public” Must be the Requester’s Choice, not the Agency’s Choice.
Deficiency. FOIAonline must serve as a platform for public disclosure of requests and records. In FOIAonline the “Description Available to the Public flag is set to “No” on default. Set this flag to “Yes” in order to make the description publicly searchable and viewable.” Agencies do not change the flag from “No” to “Yes,” even for completed requests, defeating the purpose of FOIA. The Agency should not have any ability to control the “Description Available to the Public” or the Requester Identity. These decisions should be entirely up to the Requester. Ostensibly, the Agencies have claimed that they need this ability to protect personably identifiable information, but that is false. All information entered into a FOIA request originated in the public domain. Agencies are using this procedure to redact the identities and contact information of government officials who in nearly all cases have placed the information into the public domain themselves or it is posted on public web sites. This includes FOIA officials and points of contact identified in Agency determination letters and appellate determinations (as required by statute) and emails sent to the requester himself. If a request number is entered into the FOIAonline.gov search and the “Description Available to the Public flag is set to “No,” FOIAOnline.gov will display “Under Agency Review.”
Required Systems Change.
- Remove the Agency’s ability to set the Description Available to the Public” flag.
- In the online request submission process allow the requester to select whether or not he/she wants his/her request to be publicly available or embargoed from public view.
- Allow the requester to later un-embargo a request to make it publicly available.
- In the alternative, remove the ability to set the flag to no and allow all FOIA requests and appeals to be publicly searchable and viewable.
2. “Requester Name” Must be the Requester’s Choice, not the Agency’s Choice.
Deficiency. The decision as to whether a requester’s name is publicly available must be made by the requester and not the Agency. This allows other requesters to follow the work of a requester and potentially collaborate on certain topics, such as public malfeasance. Other platforms such as MUCKROCK offer this capability. For example, requester Robert Hammond submitted 173 requests via FOIAonline.gov to Department of Navy. A public search for Hammond and Department of Navy returns two results (DON-NAVY-2018-012025 and DON-NAVY-2018-012024), but even there the request details are shown as “under review” and no records are accessible from FOIAonline.gov public view. This also impedes accountability wherein anyone should be able to match the dates received and completed along with the Agency’s Raw Data supporting its annual FOIA report to document those cases of clear inaccurate Annual FOIA reporting to the Attorney General of the United States.
Required Systems Change.
- Remove the ability for the Agency to block the identity of the requester.
- In the online request submission process allow the requester to select whether or not he wants his/her name to be publicly available or embargoed from public view.
- Allow the requester to enter a “screen name’ for public view in lieu of requester name.
- Allow the requester to later un-embargo his/her name on a request to make it publicly available.
Background There are serious deficiencies within the FOIAonline.gov web application that allow agencies to cheat the process and impede transparency. All of my FOIA requests contain an email address and nearly all are submitted via the FOIAonline application. While I refer to the Request Details tab and the Correspondence tab, these are simply the visible displays in FOIAonline.gov. My System Change Requests below would apply to the underlying program code and database
3. Requester Inability to Reply in “Correspondence” Tab
Deficiency. Where there is only a system response to a request and no agency correspondence in the “correspondence tab” the requester is unable to initiate follow-ups for requests or appeals that may be several years old. Even offline follow-ups via email directly to the agency are not recorded in the correspondence tab. This applies to requests submitted both through the application and those entered by the Agency. This is an extremely serious void that ultimately impacts public disclosure and FOIA litigation. See examples:
DON-NAVY-2018-001229 Request Simple 11/09/2017 N/A Assignment
DON-NAVY-2019-000954 Appeal N/A 11/01/2018 12/03/2018 Assignment
Required Systems Change. Allow the Requester to reply to system generated notices without having to wait for the Agency to initiate correspondence which may never come. While the Requester has the ability to “Modify this Request” follow-ups are not modifications and placing any correspondence in the “Request Details” tab would allow the Agency to treat a follow-up as a modification and restart the processing time clock.
4. Agency Improperly Placing Correspondence in the Request Details tab.
Deficiency. While the Agency has the ability to enter data and documents in the Request Details tab for requests that are not submitted through the FOIAonline.gov application, I have examples where the Agency has entered final determination letters in the Request Details tab rather than the Correspondence tab and never sent the final determination letter. This appears to be an intentional act, which impacts FOIA appeal rights and litigation.
Required Systems Change. In instances where the Requester has submitted a FOIA request via FOIAonline.gov, the Agency should not have any ability to enter any correspondence whatsoever in the Request Details tab. Similarly, once a request is created for an offline submission, the Agency should not have any ability to enter further data or correspondence in the Request Details tab.
6. Agencies Improperly “Modifying” Requests and Appeals.
Deficiency. FOIAonline.gov allows the Agency to modify the description of a FOIA request or appeal and to only display in the Public view the Agency’s modified “Request Description.” Ostensibly, the Agencies have claimed that they need this ability to protect personably identifiable information, but that is false. All information entered into a FOIA request originated in the public domain. Agencies are using this procedure to redact the identities and contact information of government officials who in nearly all cases have placed the information into the public domain themselves or it is posted on public web sites. This includes FOIA officials and points of contact identified in Agency determination letters and appellate determinations (as required by statute) and emails sent to the requester himself.
Respectfully submitted,
Robert Hammond
Attachment: FOIAonline Agency User Guide
[OGIS Note: Attachment not posted but available upon request. The FOIAonline User Guide Version 0.10(June 3, 2016) cited by Mr. Hammond is available online.]