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Public Comments Submitted by Robert Hammond on May 3, 2021 - OGIS Mediation and DOD’s change to CFR 32 CFR part 286.4

From: Robert Hammond
Sent: Monday, May 3, 2021 4:46 PM
To: ogisopenmeeting@nara.gov;  Alina Semo, Kirsten Mitchell
Subject: (PUBLIC COMMENT, OGIS ANNUAL OPEN MEETING MAY 12, 2021. Subject: OGIS Mediation and DOD’s change to CFR 32 CFR part 286.4
Importance: High

 

PUBLIC COMMENT, OGIS ANNUAL OPEN  MEETING MAY 12, 2021

(Also submitted to FOIA ADVISORY COMMITTEE

& CHIEF FOIA OFFICERS COUNCIL)

Subject: OGIS Mediation and DOD’s change to CFR 32 CFR part 286.4 (ecfr.federalregister.gov/current/title-32/subtitle-A/chapter-I/subchapter-N/part-286)

  1. Please post this Public Comment, add it to the May 12, 2021 OGIS Annual Open Meeting Agenda and address it as a topic during the meeting the Public Comments Submitted by Robert Hammond on February 25, 2021 at 2:38 PR (ET) below.
  2. In posting this and all other Public Comments add the subject of the comments, in lieu of simply the Submitter Name and date & Time. This will allow for Public discovery of these topics and facilitate more interest in your meetings.
  3. This is in furtherance to my Public Comment of March 3, 2021, which has been removed from the Public Comments. My individual link still works (www.archives.gov/ogis/foia-advisory-committee/2020-2022-term/public-comments-2021-03-03) while the link on the OGIS website does not www.archives.gov/ogis/foia-advisory-committee/2020-2022-term/public-comments-2021-03-03--hammond). Please repost my March 3, 2021 Comments.
  4. OGIS dispute resolution is one of the few safeguards for private requesters, whom federal agencies know almost never, never, never seek litigation; and when they do they are overmatched by the unlimited resources of the federal agencies and DOJ litigation staff supporting them.

Update to Public Comments Submitted by Robert Hammond on March 3, 2021.

  1. Please address these updates in addition to my original March 3, 2021 comments.
  2. While OGIS sent me an email providing links to its annual reports and a new quarterly performance metrics, my request for the Public Disclosure of Raw Data with case numbers remains unanswered. This will be extremely helpful to those seeking assistance.
  3. OGIS has not addressed DOD’s change to DOD’s change to CFR 32 CFR part 286.4  wherein DOD states that participation in alternative dispute resolution is optional, nor has OGIS indicated that it will include in its reporting instances where Agencies refuse to participate. I believe that the statutory language makes it optional for a requester to seek OGIS dispute resolution, but mandatory for the Agencies to participate; nevertheless, instances where an Agency refuses to participate should be included in Annual Reports. I believe that DOD’s change to CFR 32 CFR part 286.4 may be unlawful or at best at odds with Congressional FOIA Improvement Act of 2016 which uses the word “shall” not “may. “ In addition, I have provided multiple examples wherein DOD has not included the language offering OGIS dispute resolution and appellate determinations wherein DOD states it is not required to include the statutory language offering it.

“(II) the right of such person to seek assistance from the FOIA Public Liaison of the agency; and

“(III) in the case of an adverse determination—

“(aa) the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and

“(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and”; and

 (ii) in subparagraph (B)(ii), by striking “the agency.” and inserting “the agency, and, notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.”

  1. References:

(a) The Freedom of Information Act (FOIA) Improvement Act of 2016 (Public Law No. 114-185), available at https://www.justice.gov/oip/freedom-information-act-5-usc-552

(b) Administrative Instruction 106, “Alternative Dispute Resolution (ADR) Program,” January 30, 2014

(c) DoD 5400.11-R, “Department of Defense Privacy Program,” May 14, 2007

(d) DoD Directive 5145.01, “General Counsel of the Department of Defense (GC DoD),” December 2, 2013, as amended

(e) DoD Directive 5145.04, “Defense Legal Services Agency (DLSA),” April 16, 2012

(f) DoD Directive 5400.11, “DoD Privacy Program,” October 29, 2014

(g) DoD Manual 8910.01, Volume 1, “DoD Information Collections Manual: Procedures for DoD Internal Information Collections,” June 30, 2014

(h) Executive Order 12988, “Civil Justice Reform,” February 5, 1996

(i) Public Law 101-552, “Administrative Dispute Resolution Act,” November 15, 1990

(j) Public Law 104–320, “Administrative Dispute Resolution Act of 1996,” October 19, 1996

(k) Presidential Memorandum for Heads of Executive Departments and Agencies, “Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking,” May 1, 1998

(l)  United States Code, Title 5

(m) DoD Instruction 5145.05, “Alternative Dispute Resolution (ADR) and Conflict Management

  1. I believe that Agencies should also include the Raw Data associated with their requests for FOIA Public Liaison assistance and provide an exact number for the number of such requests rather that >1000. It is not clear that DOD has adequate internal controls for implementing the statutory requirement and accounting for DOD’s participation.

Action Sought.

Address my comments in Public Forum.

OGIS and or DOJ issue an advisory stating that statutory language “the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and” must be included in adverse determinations and that the word “or” does not mean that the Agency can omit “the Office of Government Information Services” in adverse determinations.

Public Comments Submitted by Robert Hammond on March 3, 2021

From: Robert Hammond 
To: FOIA Advisory Committee, Alina Semo, Kirsten Mitchell
Subject: PUBLIC COMMENT. RE: March 3, 2021 Advisory Council Meeting. Status of 2018 - 2020 Recommendation #19.
Date: Wed, Mar 3, 2021 at 3:30 PM (ET)

Best viewed as HTML.

Subject. PUBLIC COMMENT. RE: March 3, 2021 Advisory Council Meeting. Status of 2018 - 2020 Recommendation #19.

Thank you for the opportunity to participate in the public comments today. Please add the post meeting comments for future consideration regarding potential FOIA process improvements.

 Status of 2018 - 2020 Recommendation #19 (and my Recommendations).   

This is in furtherance to my comments in the chat for today’s meeting to provide additional information on DOD’s change to CFR 32 CFR part 286.4 making participation with OGIS optional, which serves as the impetus for my recommendations that OGIS disclose in its annual reports and/or on its public web site ADDITIONAL information relative to OGIS requests for assistance and how they were resolved, similar to Annual FOIA Report Raw Data. OGIS and DOJ OIP are aware of my past correspondence wherein DOD did not even cite OGIS dispute resolution in its FOIA and Administrative Appeals correspondence (as required by statute whether DOD participates or not). Some of those OGIS/DOJ OIP cases remain open. While DOD may elect not to participate in OGIS dispute resolution, I believe that Congressional intent for OGIS assistance is to offer a venue to resolve issues short of litigation, so public disclosure of complete information regarding the FOIA request/appeal numbers applicable to a request for dispute resolution (where available), etc., and resolution/closure of cases, including those where the Agency declined to participate, is in the Public Interest. To the extent that OGIS assigns internal case numbers to requests for assistance/dispute resolution, that additional information would be pertinent as well.

I. CHAT COMMENTS.

  1. Status of 2018 - 2020 Recommendation #19.    Are you able to provide a very short, updated status on Recommendation #19 wrt action taken or anticipated by Congress or OGIS expanded authority?     Recommendations for Congress 19. We recommend that Congress engage in more regular and robust oversight of FOIA and the long-standing problems with its implementation; that Congress hold more hearings, establish a more regular and coordinated stream of communication and inquiries to agencies around FOIA issues; and that Congress strengthen the Office of Government Information Services with clearer authority and expanded resources.
  1. Status of 2018 - 2020 Recommendation #19. Would it be possible for OGIS to publish the number of requests for assistance received, the number closed, the number remaining open and the number of times that an Agency refuses to participate [by Agency]? DOD for example has published a change to CFR stating that participation by DOD is voluntary. This followed many of my complaints to OGIS, DOJ OIP, the Agencies, and their leadership that many DOD entities were not even including the option for OGIS assistance/mediation in their FOIA & Appeals letters.
     
  2. Status of 2018 - 2020 Recommendation #19. Would it be possible for OGIS to treat disclosure of request for OGIS assistance in the same way as FOIA Raw Data, wherein the Agencies identify the FOIA requests and appeals, when received and closed and the manner of closure (exemption claimed, full release, etc.)?

II. DOD CHANGE to 2 CFR part 286.4 

32 CFR part 286 

        Amend § 286.4 by revising paragraph (b) to read as follows:

§ 286.4

FOIA Public Liaisons and the Office of Government Information Services.**

(b) Engaging in dispute resolution services provided by OGIS. These dispute resolution processes are voluntary processes. If a DoD Component agrees to participate in the dispute resolution services provided by the Office of Government Information services (OGIS), it will actively engage as a partner to the process in an attempt to resolve the dispute.

Thank you again. 

With my respect,

Robert Hammond

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