Public Comments submitted by POGO et al.

Dear FOIA Advisory Committee:

The undersigned groups support the Freedom of Information Act (FOIA) Advisory

Committee’s efforts to improve public access to government information and

its proposed model determination letter. Our groups have promoted greater

government transparency, including numerous FOIA improvements, for many

years. We support the committee’s proposed model letter, and agree that it

will close gaps and inconsistencies in agency FOIA replies, especially those

related to cited FOIA exceptions, agency search efforts, and referrals to

other components or agencies.

The proposed letter will make the FOIA process more efficient for agencies

and the public. Specifically, it will reduce appeals from requesters by

making clear how their FOIA request was handled and why any records, or

portions thereof, were withheld.

We agree with the advisory committee’s statement that:

By providing more detail about the substance of a determination, requesters

can file more targeted and informed administrative appeals. Indeed, supplied

with information about an agency’s actions, a requester may not file an

administrative appeal at all. Agencies, in turn, need not expend resources

where they are not truly needed. [1]

There are many positive provisions in the model determination letter. There

are also a few issues that we would like to bring to the attention of the

committee.

First, we support the model letter’s inclusion of the date the FOIA search

was initiated and if (or when) the search was completed. The search

initiation date is important to requesters as it is often the cut off for

open-ended requests (such as requests for information generated starting on a

specific date and through “the present”), some of which were received by

the agency months or even years before the search began. It is equally useful

to requesters to learn when the search was completed to help ensure an

adequate search was conducted.

Second, we support describing the search methodology (including the search

terms), the systems searched, and the locations searched in the letter. Doing

so will benefit requesters and head off many “adequacy of the search”

appeals and litigation. Equally, getting information about the search

results, limits on the search, and the total number of responsive records

will significantly reduce questions about agency actions and efforts to

provide responsive records.

Third, we agree that it is necessary and beneficial to all parties that when

applying the multi-pronged (b)(5) exemptions an agency indicates which

privilege is being cited. Unlike exemption (b)(7), which is also

multi-pronged, the (b)(5) applicability standards are not explicitly defined

by statute. When applying exemption (b)(7), an agency is required to

specifically identify which of the six sub-exemptions it is invoking to apply

the withholding. By providing this information to the requester, the agency

is allowing the requester to make an informed decision about the

applicability and allowing them to determine whether an appeal is merited

without needing to seek more clarity. Exemption (b)(5) should be held to the

same standard.

FOIA reviewers are well-aware of the nuances of exemption (b)(5) and must

have in mind which specific privilege the withheld information would

potentially violate if released. [2] Merely citing a FOIA exemption in a

partial or full denial isn’t helpful to requesters. It is only logical that

indicating the specific privilege while processing a request eliminates the

need for the requester to instead seek it through an administrative review or

from a court. The proposed determination letter gives a prime opportunity to

disclose this information. Doing so would reduce follow-up correspondence,

appeals, and litigation that is currently necessary to access the same

information. It would also significantly reduce the financial and physical

resources expended by agencies that, under the proposed format, would not

need to address as many requesters’ questions and challenges, since much of

the disputed information would now become routinely provided. The

committee’s model letter will provide requesters with more information

about the redactions, and that will lead to reduced backlogs and

administrative and legal actions.

For example, having agencies provide an explanation about the nature of

redactions will stop the guessing game that occurs. Requesters immediately

think “what is the agency withholding” and “how do we know if it is

properly withheld.” Sometimes requesters are lucky and find a FOIA officer

who is willing to answer those questions via a call or an email.

Unfortunately, that is rarely the case, and requesters are usually forced to

file an administrative appeal and wait many months for a decision regarding

where the withholdings were appropriate. If the request is remanded, there is

waiting. If the appeal is denied, litigation is the next step, which comes

with more waiting and a hefty price tag for the government, the requester,

and sometimes the courts.

Although the proposed determination letter does make several improvements to

the FOIA process, there are a number of areas for additional improvement.

For instance, we recommend the following addition (in bold) because the first

sweep of documents might include items that are non-responsive or duplicates.

As a result of these searches, [###] pages [or volume/other descriptor] of

potentially responsive records were located. After completing its review,

[agency] has identified a total of [###] pages [or volume/other descriptor]

as responsive to your request.

Another area for improvement is related to the “foreseeable harm

standard,” which is in the FOIA statute. The letter mentions the standard,

but more can be done on this issue. If and when this standard is applied, the

determination letter should describe what the foreseeable harm is or how the

agency determined that release of the requested information meets that

standard. We urge the committee to add that each record withheld should have

its own analysis to support the agency’s claim that foreseeable harm

exists.

We also request that the committee revise the language related to foreseeable

harm in the “partial denial” and “full denial” sections of the

letter, which states that withholdings can be “separately justified under

the statutory foreseeable harm standard, 5 U.S.C. § 552(a)(8).” [3] This

is misleading, as foreseeable harm does not “justify” withholdings but

instead requires disclosure unless there is specific and foreseeable harm. As

written, it signals to the public that the law requires withholdings when the

opposite is true. To avoid this misinterpretation of the foreseeable harm

standard and its proper invocation, we propose the following:

FOIA allows agencies to withhold information that is covered by one of the

nine exemptions, set forth in 5 U.S.C. § 552(b)(1)-(9), or if withholding of

the information is required by law. However, as the DOJ states in its FOIA

guidelines, “[i]nformation that might technically fall within an exemption

should not be withheld from a FOIA requester unless the agency can identify a

foreseeable harm or legal bar to disclosure.” [4] That standard applies

when the agency determines information is protected by one or more of the

nine exemptions and can independently identify a non-generalized explanation

of the foreseeable harm that would result from disclosure.

The proposed letter should also address shortcomings regarding

information-sharing about a number of the exemptions. Our groups recommend

that the committee consider the following improvements:

1.      Provide the actual statute that justifies any (b)(3) exemption. [5]

2.      Identify suggested redactions from submitters made pursuant to 5 U.S.C. §

552(b)(4) and EO 12600. [6]

3.      Declare that any exemption pursuant to (b)(6) weighed the public interest

and the official’s level of authority where senior officials hold a lesser

privacy interest than other government employees. This equally applies to

privacy exemptions under (b)(7)(C).

4.      Declare when there is a current enforcement or proceeding that would be

impacted by the release of the requested information. [7]

These recommendations will give requesters a better idea of what was

withheld. The person who processes the request has firsthand knowledge, the

sharing of which can prevent any confusion about what was withheld and why.

If the processor provides that information at the outset of the production,

such as in the determination letter, the need for requesters to escalate the

request (via correspondence, administrative appeal, or litigation) will be

significantly reduced. Not only is this beneficial for the requester but also

presents agencies with substantial cost-savings opportunities. FOIA

administration is not funded under a specific line item in the legislative

appropriations process for most agencies. Instead, FOIA offices are generally

funded as a portion of general administrative activities, making it

challenging to maintain the necessary staffing and resources to function at

optimal levels and reduce backlogs.

Another problem is that agency contact information is often lacking during

the FOIA process and when requesters receive a determination letter. The

determination letter should provide direct contact information for the FOIA

officer and the FOIA liaison so that requesters can ask questions and receive

answers. If the goal is to reduce backlogs and save resources, unmonitored

phone numbers and generic email addresses, which often result in no contact

at all, are not a best practice and should be used sparingly at the

determination letter stage.

Finally, while estimated completion dates are mentioned in the FOIA statute,

[8] in practice agencies are abusing the system. Recently, agencies have

pushed estimated completion dates back by months and even years without

explanation. This practice is stringing along requesters, and preventing

litigation for those who can afford to turn to the courts. In some cases,

these agency-caused delays result in requesters receiving “are you still

interested?” letters. The committee should review estimated completion

dates and recommend that agencies do a better job at providing realistic

completion dates. The current provision restricting the collection of fees

when agencies fail to comply with FOIA’s statutory deadlines is not

working. [9] Action must be taken to prevent agencies from disregarding the

mandate to provide “the date on which a determination is expected to be

dispatched.” [10]

We thank the committee for proposing a model determination letter, and we

hope that these comments will provide a path forward that will save a lot of

time and resources.

Sincerely,

Open The Government

Project On Government Oversight

Transparency International U.S.

American Oversight

National Coalition for History

The FOIA Project at FOIAproject.org

Anne Weismann, FOIA Litigator

David Bahr, FOIA Advisory Committee Member 2014-2016

[1] FOIA Advisory Committee, Office of Government Information Services,

Attachment B, “Proposed Model Agency Determination Letter,”

https://www.archives.gov/files/ogis/documents/transmittal.attachmentb.final_.pdf.

[2] This exemption covers “inter-agency or intra-agency memorandums or

letters that would not be available by law to a party other than an agency in

litigation with the agency, provided that the deliberative process privilege

shall not apply to records created 25 years or more before the date on which

the records were requested.” 5 U.S.C. § 552(b)(5) (2023),

https://www.law.cornell.edu/uscode/text/5/552. According to the Department of

Justice, the privileges most cited are “the deliberative process privilege

(referred to by some courts as ‘executive privilege’), the attorney

work-product privilege, and the attorney-client privilege.” (Citations

omitted) Department of Justice, Guide to the Freedom of Information Act:

Exemption 5 (March 13, 2023), 3,

https://www.justice.gov/d9/pages/attachments/2023/03/13/exemption_5_final.pdf.

[3] FOIA Advisory Committee, “Proposed Model Agency Determination Letter”

[see note 1].

[4] The Attorney General, Office of the Attorney General, “Freedom of

Information Act Guidelines,” March 15, 2022,

https://www.justice.gov/media/1212566/dl?inline.

[5] Exemption (b)(3) generally allows the withholding of information

“specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(7)

(2023), https://www.law.cornell.edu/uscode/text/5/552.

[6] Section 4 states: “When notification is made pursuant to section 1,

each agency’s procedures shall, to the extent permitted by law, afford the

submitter a reasonable period of time in which the submitter or its designee

may object to the disclosure of any specified portion of the information and

to state all grounds upon which disclosure is opposed.” Executive Order No.

12600, 52 Fed. Reg. 23,781 (June 23, 1987),

https://www.archives.gov/federal-register/codification/executive-order/12600.html.

[7] Exemption (b)(7)(A) and (B) exempts “records or information compiled

for law enforcement purposes, but only to the extent that the production of

such law enforcement records or information (A) could reasonably be expected

to interfere with enforcement proceedings, (B) would deprive a person of a

right to a fair trial or an impartial adjudication[.]” 5 U.S.C. §

552(b)(7) (2023), https://www.law.cornell.edu/uscode/text/5/552.

[8] 5 U.S.C. § 552(a)(7)(B)(ii) (2023),

https://www.law.cornell.edu/uscode/text/5/552.

[9] 5 U.S.C. § 552(a)(4)(A)(viii) (2023),

https://www.law.cornell.edu/uscode/text/5/552.

[10] 5 U.S.C. § 552(a)(6)(B)(i) (2023),

https://www.law.cornell.edu/uscode/text/5/552; see also 5 U.S.C. §

552(a)(7)(B)(ii) (2023) [see note 8].