Tag Archives: granted in full

A “Sensitive” (and expensive) Response from the State Department

Today a giant envelope from the State Department appeared on my desk. Inside the envelope was the response to my FOIA request for the agency’s report to the Archivist on records management.

First, I must say that I’m glad it only took about 5 and a half months to get the requested documents; my response came in under the average 155 working days, on average, it takes State to process a simple request. Other things about this particular response can easily be classified as “the good, the bad, and the downright mystifying.”

The Good

The requested report was released in full. State joins the ever-growing list of agencies that have declined to protect the report using exemption b5 (interagency documents). State also granted my fee waiver request.

The Bad

Did I mention that the report was mailed to me in a large envelope? As I do on all requests, I had asked for it to be sent to me electronically. State may very well have good reasons that it was not able to email me the records, but I would not know because they do not even acknowledge my request for an electronic version in their response. Adding insult to the injury is that State spent more than $16 dollars using registered mail to send me the copy.

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The Confusing

When I first opened the package I assumed it must be a response to some other request I have open. Why would a report on records management be marked (repeatedly) as “Sensitive?”

Sensitive But Unclassified is one of many markings currently in use throughout the federal government that has no basis in statute or government-wide policy. These markings, which also include the ubiquitous “For Official Use Only,” are commonly called CUI or “Controlled Unclassified Information.” Each agency has its own rules for what is stamped, and how that document should be handled. The National Archives and Records Administration (NARA), in response to an Executive Order by President Obama, is currently going through a process to streamline the markings. Once it is fully-implemented, stamps like the “Sensitive But Unclassified” one should be a thing of the past.

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Report – and Attachments – from DOJ Comes through the Mail

Yesterday I found a very thick envelope from the Department of Justice (DOJ) waiting for me on my desk.

DOJ PicInside the envelope were 4 documents: a letter letting me know that DOJ was releasing the report to me in full (more on that in a second); the report; and two attachments referred to by the report. You can download all of the documents here:

DOJ Response Letter

DOJ Records Mgmt Report

DOJ RM Report – Attachment A

DOJ RM Report Attachment B

First, I have to praise DOJ for the thoroughness of its response: proactively releasing attachments is a great way to help a requester avoid having to file more requests.

Honestly, however, this approach would have been even more appreciated is DOJ had sent me versions electronically — as I requested. About half of the agencies I sent requests to have corresponded with me using standard mail. Answering electronic requests with paper responses is extremely frustrating for users — and extremely inefficient. For one thing, using the US Postal service is slower than email and costs more money. According to the postmark, DOJ put the mail report in the mail 5 days ago, and it cost DOJ $2.12 cents to mail me the envelope. If they had emailed me the report, delivery would have been virtually instantaneous and free. Another frustration for users with paper responses is that it puts a greater burden on us to make the documents more usable and widely available. Furthermore, graphics that may be perfectly lovely in their digital format can become almost illegible when they are printed out (see DOJ RM Report Attachment B for an example of this).

Moving onto the substance of DOJ’s response letter, it is interesting that DOJ makes a point of pointing out that the report “contains information that could be considered exempt under FOIA exemption 5” and that the agency has made a “discretionary decision to release the report in full.” We decided to request copies of a report from agencies to the National Archives in part because we knew that the information could be covered under exemption 5 (intergovernmental records). Under the guidelines set by President Obama and Attorney General Holder, agencies are encouraged to make a discretionary release of such information unless there is a foreseeable harm in doing so. We know at least one other agency considered using exemption 5 before deciding to release the report in full. Thus far, however, DOJ’s response letter is the only one that contains this language.

A Final Response from DHS – and thoughts on why all FOIA responses should be online

On February 6 the Department of Homeland Security (DHS) granted my request in full, and emailed me the records. According to the response letter, the release is in response to the request I filed back in October.

Here is the report and response letter:

Bennett Final Response

As followers of this blog may remember, when I called to check on the status of the October request a few months ago, DHS said it had no record of ever receiving it and asked me to please resubmit the request. A call to follow-up on the re-submitted request revealed that DHS had found the original request and were already processing it.

The only outstanding issue at DHS now is what happened to the second request I submitted. Hopefully, DHS disregarded that request once it found the old one (though it would have been nice of them to at least notify me). At worst, DHS is still processing my second request and I may get another copy of the report.

Actually, at the VERY worst, DHS applies some exemptions to the report the next time it is reviewed and sends me a redacted version. An agency applying exemptions inconsistently to the same document is certainly not without precedence – our friends over at the National Security Archive have some great examples from the world of classified documents.

This brings me to another reason why by default all records the government releases under the FOIA should be available online. At least one of the reasons exemptions are sometimes applied inconsistently is that at most agencies FOIA reviewers have no way to know how other reviewers have treated the same document. If all of the released documents were online, reviewers could look to the records already online to see how exemptions have been applied to similar records.

Making all records released under the FOIA available online is a common-sense solution to addressing some (though clearly not all) of the public’s frustrations with the federal FOIA system. As we’ve discussed previously, it is good policy for the public because it means we can access more records without having to file a FOIA request, and it is good policy for the government because it will have to process less requests for the same document.

Agencies already participating in the FOIAonline service currently have the option of making records released under the FOIA available in a (somewhat) searchable central repository. We hope that agencies using FOIAonline start to make better use of this feature. Agencies do not have to wait to join FOIAonline to start making this a common practice, though. We hope that all agencies start to think about how they can make material released under the FOIA more accessible.

EPA Eschews FOIAOnline?

Yesterday afternoon I was surprised to get an email from the Environmental Protection Agency (EPA) with a copy of the requested report attached. The surprising part was not the release of the report itself, it is that it seemed to occur completely separate from the FOIAOnline system.

Earlier in the afternoon, I’d logged in to my FOIAOnline account to see if there were any updates on my outstanding requests and nothing had changed from what I saw before the holidays: my two outstanding requests were months past their expected due dates and still listed as “On Assignment.” I searched for an option to correspond with the agencies for some sort of an update, but could not find an option to do so within the system or any other kind of phone number or email address I could use.

Since the report had appeared in my inbox, I decided to log back into my FOIAOnline account this morning to see if anything had changed. My request with the EPA was still listed as “On Assignment,” but there was a small icon next to the request indicating that I had unread correspondence. I clicked through and saw that this had been added to the record:

Correspondence

I now had the option to correspond with the agency, but the system was still not showing the records that had already been released. As you can see above, I am asking when the records will be available through the system.

We want the records to be available via FOIAOnline because, as we’ve written about before, one of the supposed benefits of the FOIAOnline system is that once an agency using FOIAOnline releases a record, it can easily make it available to the public. This is intended to help cut down on the number of duplicate requests because users are encouraged to search for previously released records before filing their request.

For the time being, I’ve made the released record available here. Hopefully the EPA will make it more broadly available soon.

EPA Report on Managing Government Records

Transportation Releases the Report

On December 3 the Department of Transportation joined the growing list of federal agencies that agreed to release their report to the National Archives on recommendations for records management in full. The email sent to us by Transportation included PDF versions of the release letter, the memo accompanying the report, and the report (all available below).

As luck would have it, I got to talk about my request and this project with Transportation’s FOIA officer at a recent meeting of the American Society of Access Professionals (ASAP), a nongovernmental organization that brings together FOIA professionals from the government and the requester community (the report had landed in my email in-box prior to this discussion). As we expected when we first formulated this project, Transportation’s initial impulse was to withhold at least some of the material under exemption b5, which protects inter- and intra- governmental information. B5 exists at least in part to make sure that people within the government feel free to offer a full range of advice and opinions prior to a decision being made. Before making a final determination, however, the FOIA officer assessed whether the release of its recommendations to NARA would actually have a chilling effect on their willingness to provide input in the future. Transportation ultimately decided that it would not, and released the report in full.

The analysis Transportation described going through before applying the B5 exemption is exactly the kind of action all agencies need to go through in order to live up to the current Administration’s FOIA policy. As some of you may remember, a few months after taking office, Attorney General Holder directed agencies to use their discretion in applying FOIA exemptions. We hope all agencies are following in Transportation’s footsteps.

2013-005_ResponseLetter

DOTtransmittalMemo

DOT_RecordsMgmtReport

EEOC Mails the Report

Our 11/6 mail delivery included a thick envelope from the EEOC that held a letter letting us know that the report we requested was being released in its entirety and a copy of the report. Frustratingly, the letter does not acknowledge that we specifically asked for the report to be released electronically, or explain why it was not released electronically. We scanned in the letter and the report to make them available below.

EEOC Letter

EEOC Released Report

Labor Mails the Record “Electronically”

On 11/5 we received a large envelope in the mail from the Department of Labor. The packet included a letter stating that they had identified the requested record and that “as requested, the records are enclosed electronically.”

While it is certainly true that we requested the record be released electronically (as we did with all of our requests), the printed out version of the report included in the envelope does not fit into any familiar definition of “electronically.” We scanned the letter and the report to make them available below.

Labor Response Letter

Labor – Response Package