Draft Proposed Model Agency B5 Determination Letter - Comment #2
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FOIA Advisory Committee Modernization Sub-committee Draft Proposed Model
Agency Determination Letter
Comment #2
PUBLIC COMMENT July 20, 2023
by Robert Hammond
foiacompliance@gmail.com
@foiacompliance (Twitter)
Graphic by PoweredTemplate.com
Outline 1
Preface 2
General Recommendations 4
Attachment A – Committee Recommendation 7
Atttachment B – Draft Proposed Model Determination Letter 9
Sample Hammond Public Comments 23
An informed citizenry is at the heart of a dynamic democracy. - Thomas
Jefferson
Preface
I am extremely grateful to the FOIA Advisory Committee Modernization
Sub-committee for producing the recommendation requiring agencies to identify
Exemption 5 privileges and for producing the Draft Proposed Model Agency
Determination Letter, which will be a gift to our nation when finalized.
It is awesome that the Committee is producing recommendations early in its
term and staffing them with the public for comment!
At the June 8, 2023 FOIA Advisory Committee meeting, the Modernization
Subcommittee asked for comments. Where I have made comments under the
headings of General Recommendations, Attachment A– Committee Recommendation
and Attachment B - Proposed Model Agency Determination Letter, the Committee
may incorporate them into their final work product anywhere that makes sense.
I previously addressed where the Proposed Model Agency Determination Letter
contains an error (perhaps a typo, i.e., errantly citing “or” versus
correctly citing “and”) and material omissions regarding the Foreseeable
Harm Standard which are repeated herein.
Congress added the foreseeable harm provision to FOIA in 2016 in an effort to
limit agencies’ overuse and abuse of FOIA’s exemptions. To counteract
that secrecy, the foreseeable harm provision prohibits agencies from
withholding information — even if it falls within the scope of one of
FOIA’s exemptions — unless the agency reasonably foresees that disclosure
of the record would harm an interest protected by the exemption, or
disclosure is prohibited by law.
Attorney General Policy prohibits DOJ from representing agencies in
litigation that do not clearly articulate the particularized harm for each
redaction/withholding or group with the same particularized foreseeable harm.
General Recommendations
1. DOJ Guide to The Freedom of Information Act.
a. The DOJ OIP website DOJ Guide to The Freedom of Information Act Exemption
5 is not balanced regarding federal agencies versus requesters. In my view,
is a “how to guide” for agencies to defeat requesters. Applicable Wikis
are more balanced (See https://foia.wiki/wiki/Exemption_5). DOJ OIP should
incorporate factual material from the public Wikis in its guides to FOIA for
each exemption.
b. DOJ OIP should make all training materials publicly available to ensure
that they are balanced.
2. Moot appellate determinations – no such thing. The appellate authority
must adjudicate an appeal based on the facts at the time of the appeal. The
appellate authority may not cure an agency’s initial determination by
releasing records nor may the agency do so without the appellate authority
first granting the appeal and remanding it back to the agency. Any other
approach violates both the FOIA statute and DOJ OIP guidelines as it results
in inaccurate FOIA reporting. Even DOJ OIP uses “moot” determinations
extensively. See public comment “Moot Appellate Determinations” at
https://www.documentcloud.org/app?q=%2Buser%3Arobert-hammond-106693%20 .
3. Standardizing appeals issues. DOJ OIP should clarify or the FOIA Advisory
Committee should recommend standardizing what issues are subject to appeal,
as this varies widely among agencies. NARA, for example, does not even permit
challenge the adequacy of a search. NARA states:
However, a requester cannot administratively appeal a late response to a
request for expedited processing as NARA’s FOIA regulation, 36 CFR 1250,
states a requester may appeal:
(a) The refusal to release a record, either in whole or in part;
(b) The determination that a record does not exist or cannot be found;
(c) The determination that the record you sought was not subject to the FOIA;
(d) The denial of a request for expedited processing; or
(e) The denial of a fee waiver request.
a. In one instance I filed three appeals to an agency regarding initial IDA
and remand responses. In all three cases, the agency refused to adjudicate
issues, stating for example “Regarding the assertions of your appeal
numbered 1-8, these matters are not adverse determinations that can be
appealed under the DoD’s published FOIA Program.” [Title 32, Code of
Federal Regulations, Part 286].
b. Such proposed standardized appeal matters would be relevant during any
litigation and the agency should address them. The examples below should be
included.
c. FOIA time standards. Failure to meet any processing time standard
prescribed by the FOIA (e.g., twenty working days generally, expedited
processing, fee determinations, unusual circumstances.)
i. An agency recently issued a FOIA request acknowledgement 2.5 years late
improperly claiming unusual circumstances for a FOIA request that it had not
included in three successive FOIA annual reports or quarterly FOIA.gov data.
d. Government misconduct generally. (e.g., “The public interest is
particularly high where government misconduct is concerned.” See Trentadue
v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007). Violations of laws,
regulations or policies committed during processing a request or appeal.
Examples include:
i. Violations of the Administrative Procedures Act in failing to follow
one’s own policies. (e.g., a department failing to post all correspondence
in FOIAonline per its governing FOIA policy mandating that it do so).
ii. Unlawful destruction of records subject to the FOIA:
1. 18 U.S. Code § 1519 - Destruction, alteration, or falsification of
records. (Added Pub. L. 107–204, title VIII, §802(a), July 30, 2002, 116
Stat. 800.).
2. (18 U.S.C. 641 and 2071).
3. 36 CFR § 1230
iii. False Official Statements.
1. 18 U.S.C. § 1001
2. 10 U.S. Code § 907. Art. 107
iv. Violations of the Americans with Disabilities Act. (e.g., redactions in
red 6-point font against a black background). (See public comment
“Violations of the ADA in FOIA Redactions, Simple Solution” at
https://www.documentcloud.org/app?q=%2Buser%3Arobert-hammond-106693%20.)
Redactions should be made in white 12 pt Times New Roman font against a black
background.
1. NARA recently stated,
It appears the Americans with Disabilities Act (ADA) was mistakenly cited
here as it is the Rehabilitation Act which establishes requirements for
federal agencies for accessible information technology. While the
applicability of things such as Section 508 of the Rehabilitation Act
specifically to initial FOIA responses is questionable, nothing prohibits it.
Regardless, under NARA’s FOIA regulations at 36 C.F.R. 1250.70, the format
of a FOIA response is not listed as a reason for an appeal. Thus your appeal
is denied on this basis.
4. FOIA Compliance Inquiries. The FOIA Advisory Committee work products and
sample B5 exemption letter should include information regarding DOJ OIP
compliance inquiries and how to initiate them in instances where the agency
may have violated the FOIA statute or Attorney General FOIA Guidelines.
FOIA Compliance Inquiries
As part of its oversight and guidance responsibilities, OIP reviews inquiries
made by the public raising issues regarding agencies' compliance with the
FOIA statute and the Attorney General's FOIA Guidelines. Compliance inquiries
may be submitted in writing to OIP by mail or e-mail.
Office of Information Policy (OIP)
U.S. Department of Justice
6th Floor
441 G St. N.W.
Washington, D.C. 20530
Email: OIP.ComplianceInquiry@usdoj.gov
5. Unauthorized Disposition/Destruction/Alteration/Removal of Records. The
FOIA Advisory Committee work products and sample B5 exemption letter should
include information regarding the “unlawful removal, defacing, alteration,
corruption, deletion, erasure, or other destruction of records in the custody
of the agency (36 CFR Part 1230)” regarding records sought under the FOIA
or other records and how to report it. (Unauthorized Disposition of Federal
Records | National Archives
https://www.archives.gov/records-mgmt/resources/unauthorizeddispositionoffederalrecords
)
Attachment A – Committee Recommendation
“We recommend that the Office of Information Policy issue guidance stating
that whenever an agency withholds information pursuant to Exemption 5, the
agency should identify the corresponding privilege(s) invoked. If the
withholding takes the form of a redaction, the identification of a privilege
should be made part of the redaction label; if a record is withheld in full,
the agency should identify privilege(s) in its determination letter.”
HAMMOND COMMENTS
1. “Exemption B5-other” To further understanding of “Exemption
B5-other” it requires further explanation to include recognized court
opinions, which must be cited in determination letters along with an
explanation of how the exemption applies. Agencies may not make up their own
“B5-other” categories not supported by case law. Three common examples
would include:
a. Confidential Commercial Information (See Merrill, 443 U.S. at 360).
b. Statements from Air Crash Investigations (Manchin privilege. See Weber
Aircraft Corp., 465 U.S. at 796 (citing Machin v. Zuckert, 316 F.2d 336 (D.C.
Cir. 1963), cert. denied, 375 U.S. 896 (1963)). See also Utah American
Energy, Inc. v. U.S. Dep’t of Labor, 700 F.Supp.2d 99, 109-110 (D.D.C.
2010)) Reporters of Expert Witnesses (See Hoover v. Dep’t of Interior, 611
F.2d 1132, 1142 (5th Cir. 1980). See also Fed. R. Civ. Proc. 26(b)(4)
c. Reporters of Expert Witnesses. (Hoover v. Dep’t of Interior, 611 F.2d
1132, 1142 (5th Cir. 1980). See also Fed. R. Civ. Proc. 26(b)(4))
2. B5 deliberative process privilege in appeals. DOJ OIP should clarify that
the B5 deliberative process privilege does not apply to communications
between the agency and the appellate authority during administrative appeal
which is supposed to be a factual determination of the agency’s
determination letter. .
3. B5 attorney-client privilege in appeals. DOJ OIP should clarify that there
is no B5 attorney-client privilege between the agency and the appellate
authority during administrative appeal which is supposed to be a factual
determination of the agency’s determination letter. .
4. B5 attorney work product privilege in appeals. DOJ OIP should clarify that
there is no B5 attorney work product privilege regarding agency or appellate
authority communications during administrative appeal which is supposed to be
a factual determination of the agency’s determination letter.
a. By way of example an agency impermissible redacted under B5 deliberative
process and attorney work product its communications with the initial denial
authority in adjudicating my request seeking case processing records of an
appeal where the appellate authority (in addition to other impermissible
redactions) had previously released the same information without redaction
under prior FOIA request. The redacted content addressed errant FOIA
reporting and redacted under B6 the identity of its FOIA Public Liaison
meantime, the entire file is being mailed to you today.”
5. Exemptions “at the place in the record where such deletion is made.”
a. Redaction citations may not fit into space for redacted material,
particularly in cases of over redaction.
b. Perhaps the FOIA Advisory Committee may recommend shorthand such as
“*1” with the asterisk redaction label then placed in the redacted
document at a place where there is space, such as the bottom of a page or on
the last page of a PDF. Also, the foreseeable harm may be different for
redactions with the same label, so a numbered asterisk would allow more
precise articulation of the foreseeable harm.
c. Due to abuse in citing redactions, the redaction citations often do not
fit into the space where the reactions exist, and one agency did not even
make the redactions to the cited records, instead only including countless
blackened spaces in a forty-eight-page released record.
i. The agency states, “While the FOIA does state the exemption used shall
be indicated on the released portion of the record, it does not specifically
state each and every redaction must be individually labeled as you imply.”
ii. The agency did not include this 2021 FOIA request in its annual FOIA
reporting or quarterly FOIA.gov data.
6. Records withheld in full. The agency must include a statement as to why no
segregable portions may be released, which should be rarer than a two-headed
chicken.
7. Agency’s burden of proof. The Initial Denial Authority and Appeals
determination letters should cite the agency’s burden of proof for the
specific B5 exemption and how the agency has met that burden. Here is a
sample from the DOJ OIP website.
"Inter-Agency or Intra-Agency" Threshold Requirement
The initial consideration under Exemption 5 is whether a record is of the
type intended to be covered by the phrase "inter-agency or intra-agency
memorandums."
Deliberative Process
Traditionally, courts have established two fundamental requirements, both of
which must be met, for the deliberative process privilege to be invoked.92
First, the communication must be predecisional, i.e., "antecedent to the
adoption of an agency policy." Second, the communication must be
deliberative, i.e., "a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy matters."
Attachment B – Draft Proposed Model Determination Letter
1. Background. Errant Citation of Appeals Backlogs. The FOIA Advisory
Committee should not perpetuate known inaccuracies without footnotes
documenting the inaccuracies. The draft Model Determination Letter
“Background” refers to FY 2022 appeals received and backlogs citing in
footnote number 4 the source as “Summary of Annual FOIA Reports for Fiscal
Year 2022, United States Department of Justice,
https://www.justice.gov/oip/page/file/1581856/download.” However, DOJ’s
data, FOIA.gov data and agency annual FOIA report raw data are extensively
documented as being materially inaccurate. The FOIA Advisory Committee should
include a disclaimer that the source data is known to be inaccurate. A
footnote might cite my relevant public comments at DocumentCloud
https://www.documentcloud.org/app?q=%2Buser%3Arobert-hammond-106693%20 :
2. Background Justification. Add a fifth paragraph that states:
By requiring agencies to clearly articulate in determination letters the
basis for redactions/withholdings (redaction label) along with the agency’s
burdens in claiming each instance of Exemption 5 and the foreseeable harm
applicable, agencies will be creating a complete record for appeal and/or
judicial review. Such records would expose the idiocy/risk in the agency’s
position in many instances and deter agencies from abusing the exemption.
3. Verbatim Citation of Request & Return Request Copy.
a. Remove that agencies may provide “a summary of a requested records.”
Agency summaries are often materially inaccurate, distorting the record for
administrative appeal and litigation.
b. The agency must provide a verbatim description of the requested records or
attach a copy of the request.
c. When a requester seeks that an agency provide - with the determination
letter - the agency’s copy of the applicable FOIA request (which is an
official agency record when received), the agency must do so. As noted in my
FOIA requests.
“I am also seeking a copy of this FOIA Request, which is an Agency record
subject to FOIA that exists and is in the Agency’s possession at the time
of my FOIA request. This record is a responsive record integral to my
Request. Release of the Agency’s copy is not optional.”
“The definition of “records” includes:
“[A]ll books, papers, maps, photographs, machine readable materials, or
other documentary materials, regardless of physical form or characteristics,
made or received by an agency of the United States Government under Federal
law or in connection with the transaction of public business [emphasis added]
and preserved or appropriate for preservation by that agency or its
legitimate successor as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the Government or
because of the informational value of data in them.” 44 U.S.C. § 3301
(emphasis added).”
d. I have submitted a DOJ OIP compliance inquiry regarding an agency’s
pattern of practice in impermissibly refusing to release the agency’s copy
of my incoming FOIA requests.
4. Format of Agency Response and Records Release.
a. Include in the determination letter any requester language related to the
format of the requested records or the agency’s response as required by the
E-FOIA Amendments of 1996, Section 5.
b. My FOIA requests typically state variations of the following:
I am also seeking records in their native format (MS. Outlook, PowerPoint,
Excel, ADA accessible PDF files by return email with: (1) a signed and dated
cover letter (citing my personally assigned requester control number); (2)
with record page count for all released records (3) a copy of this request in
your reply. I seek records via email in PDF format with an imbedded copy of
my requests to (1) impede the agency from not addressing the FOIA Request;
(2) impede the Agency from not providing the documents stated in the
Agency’s letter reply, and (3) make it obvious in any subsequent review
what the Agency has or has not done. [emphasis added].
Further, I request that these records be sent in any digital formats in which
they exist (such as PDF and Excel). Under the terms of the E-FOIA Amendments
of 1996, Section 5, if a document exists in electronic format, it must be
released in that format upon request.
Each record must be provided as a distinct record in their native format.
Emails should be provided as MS Outlook files, if not encrypted or otherwise
unable to be opened by me. Only if this is not possible, emails should be
produced with their embedded hyperlinked attachments by using the “File =>
Save as Adobe PDF” command within Outlook or by other software that
produces the same result.
This request is distinctly separate from any other. Please do not combine
this request with any other request in your reply. I am requesting that each
element of the records sought be specifically addressed in the reply.
In all correspondence, return a copy of my FOIA request, cite my personal
request number, and cite records sought.
5. History of Request.
a. The history should include dates of respective actions and the results
thereof. For example, an agency recently sent me a request acknowledgement
letter 2.5 years after my initial FOIA request and impermissibly claimed
unusual circumstances in that letter. It is also significant to note that the
agency did not report my FOIA request in its annual FOIA reports or FOIA.gov
data during that time, resulting in inaccurate FOIA reporting.
b. Unusual Circumstances. The statutory provision regarding unusual
circumstances is outdated with respect to “(I) the need to search for and
collect the requested records from field facilities or other establishments
that are separate from the office processing the request.” With electronic
communications, there is no distinction between onsite records or those in
field offices. The agency must clearly articulate why unusual circumstances
exist and articulate the additional burden if it cites “field offices.” A
claim of unusual circumstances only grants an additional ten days for the
agency to respond unless the requester has agreed to a longer period. The IDA
letter must state this in any claim of unusual circumstances. Per the FOIA:
(6)(B)(i) In unusual circumstances as specified in this subparagraph, the
time limits prescribed in either clause (i) or clause (ii) of subparagraph
(A) may be extended by written notice to the person making such request
setting forth the unusual circumstances for such extension and the date on
which a determination is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more than ten working
days, except as provided in clause (ii) of this subparagraph.”
The agency must also have notified the requester of his right to seek dispute
resolution by its “FOIA Public Liaison, who shall assist in the resolution
of any disputes between the requester and the agency.”
Nothing in the FOIA statute, Attorney General Guidelines or litigation
precedent allows merging multiple requests into one. Each FOIA request must
have an individualized tracking number and be processed/reported separately.
Each agency may promulgate regulations, pursuant to notice and receipt of
public comment, providing for the aggregation of certain requests by the same
requestor, or by a group of requestors acting in concert, if the agency
reasonably believes that such requests actually constitute a single request,
which would otherwise satisfy the unusual circumstances specified in this
subparagraph, and the requests involve clearly related matters. Multiple
requests involving unrelated matters shall not be aggregated.
See public comment, “DOJ OIP “FOIA Reference Mode is Contrary to Law”
at https://www.documentcloud.org/app?q=%2Buser%3Arobert-hammond-106693%20.
6. [Agency’s] Search for Responsive Records.
a. Person searching. The narrative must include who conducted the search by
name, pay grade, and position title; and assert that such person is a person
knowledgeable in the potential locations of responsive records and search
criteria - and how the Agency determined this regarding such person(s). The
identity of such person(s) performing searches - regardless of pay grade –
is not exempt under B5 or B6. (I will be happy to refute any claims that only
military O5 or GS-15 and above should be released, which was based on a DOD
memorandum during time of war with a two-year period of applicability,
according to the person who drafted the memo. DOD did not renew the memo, nor
incorporate into DOD policy. It is of no current effect, despite subsequent
court cases relying on that memo.
b. When search was conducted and preservation of records. The agency must
identify when the searches were conducted along with any basis for delay. The
“adequacy of the agency’s search” includes when the search was
conducted. A favorite tactic for agencies is to (idiotically) declare simple
requests as complex and wait years to search, thereby attempting to run out
the clock on required retention of responsive or potentially responsive
records prior to conducting any searches.
i. On July 14, 2023, an agency issued initial determinations to ten 2017
simple FOIA requests seeking case processing records of prior FOIA requests.
The agency idiotically classified the FOIA requests as complex, even though
they seek records located in FOIA case files that are required to be retained
for 6+ years in accordance with NARA GRS 4.2 Item 20. The agency then ran out
the clock on records retention waiting six years to conduct searches and
stating in their determination letters that searches discovered no records.
ii. Given, some agency’s extensive use of this tactic, it is ripe for
litigation seeking a permanent injunction in order to remedy a pattern and
practice of FOIA violations by an agency where there is “a probability that
alleged illegal conduct will recur in the future.”
c. Preservation notices.
i. Apart from the NARA GRS, 4.2 Item 20 retention mandates agencies must
preserve responsive records. This is particularly urgent regarding emails,
texts and other communications that may otherwise have short retention
periods. I include legal specific, ...