We’ve grown accustomed to learning about government actions only because an enterprising person or group brought them to light using the Freedom of Information Act. Enacted in 1967 after a decade of debate and Congressional hearings, and most recently amended in 2016, FOIA was intended to correct what some viewed as the Administrative Procedure Act’s tendency toward nondisclosure.
This panel will discuss the law, how FOIA requests are used by reporters, researchers, academics, interest groups, trial lawyers and others to obtain information from the government, how the government protects information it considers covered by FOIA exemptions, how courts review government denials of FOIA requests, and some of the more newsworthy disclosures obtained using FOIA.
Eileen O'Connor: Good afternoon, ladies and gentlemen. I'm Eileen O'Connor. I'm Chairman of the Administrative Law and Practice -- excuse me -- the Administrative Law and Regulations Practice Group. Thank you for choosing this panel this afternoon. There are two others going on at the same time, and perhaps, like me, you plan on watching them as a podcast as soon as they're available.
For now, I'll introduce today's moderator, who will introduce the topic and this afternoon's panelists, but first, let me mention just a little bit about how this panel came together. The Federalist Society has 15 practice groups, each of which focuses on a specific area of law. Each practice group has an executive committee whose membership consists of about two dozen or more attorneys engaged in government, academia, private practice, or the corporate world. Recently, also, we have begun adding law students as associate members.
These are some of the smartest, most knowledgeable people in these areas of law. We meet on the phone for about half an hour once a month to share information and ideas and plan events from which we think the membership could benefit, like webinars and this afternoon's panel. Members of the Ad Law Executive Committee had the idea for the topic this panel will address and carefully selected the best possible experts to speak about it from different points of view.
The Planning Committee for this panel consisted of Ken Davis, Aram Gavoor, Judge Vaden, and me. And speaking of Judge Vaden, he graciously agreed to moderate today's panel. If you're not yet a member of a practice group and are interested in joining one and in contributing your interest and expertise to an executive committee, please let us know; and by "us," I mean me and anybody that you see today wearing a nametag that has a ribbon on it that says "staff."
Judge Vaden comes to us today from New York, where he is a judge on the United States Court of International Trade. Judge Vaden joined that court in December 2020, having been nominated by President Trump late in 2019 and again in early 2020, the same day the Senate returned his nomination to the White House. But he was born and raised and—when he is not in New York judging—resides in Union City, Tennessee, where as a youth, he helped out with his family's farming and real estate businesses.
He earned his bachelor's degree in American history summa cum laude from Vanderbilt University and his law degree from the Yale Law School, where he was a senior editor of the Yale Journal on Regulation. Early in his career, Judge Vaden served two clerkships in Memphis, Tennessee, one on the district court with Judge Mays and one on the Sixth Circuit with Judge Gibbons. He followed that by practicing law as an appellate litigator at two top-flight Washington law firms: Patton Boggs and Jones Day.
Immediately before joining the court, Judge Vaden was general counsel of the second-largest department in the executive branch, the Department of Agriculture. In that capacity, Judge Vaden made numerous impactful improvements in the department, including dispersing its operations throughout the country to better serve rural America and reduce their concentration in Washington D.C.
Particularly relevant for purposes of today's panel is that, as general counsel, Judge Vaden was the department's chief Freedom of Information Act officer and reorganized the department's FOIA program to improve response efficiency. Judge Vaden.
Hon. Stephen Vaden: Thank you so much, Eileen. Thank you so much for that kind introduction. And I just want to begin by commenting and complimenting The Federalist Society on its very sly sense of humor to have a discussion this afternoon about government transparency in the Chinese room. So I'll let you debate mentally what you think that indicates about the message we're supposed to deliver here today, but I thought it was noteworthy and just wanted to comment on it.
Like so much of our government today, the Freedom of Information Act actually has its origins in the Administrative Procedure Act. The old Section 3 of the Administrative Procedure Act allowed agencies broad discretion over the publication of information, but by the mid-1960s, the Congress was concerned that the Administrative Procedure Act was more a means of hiding information than disclosing it.
So over the original objections of President Johnson -- And you might query as to why he might not be in favor of government transparency if you've read about his tenure in office, but in 1966, Congress sought to change this by passing what became the Freedom of Information Act, and that bill went into effect one year later on the Fourth of July 1967.
One of the initial goals of that Act was that there be no secret law. The Act requires agency interpretations, rules of procedure, staff manuals, statements of policy and interpretation that have not been published in the Federal Register, but nonetheless had been adopted by the agency, all to be made public.
In addition—and its most well-known feature—it allows members of the public to request additional records from government agencies, which must be disclosed unless one of nine specifically enumerated exemptions applies. The agency bears the burden of proving that an exemption applies rather than the requestor bearing the burden of showing that they should get the document.
Furthermore, there's a right to go to court on a very quick timeframe in order to compel disclosure. One way to think about FOIA—and it's definitely the way many of our panelists here will think about FOIA today—is it has helped to privatize oversight of the federal government. It is no longer just the province of Congress to bring to light the inner operations of the federal government, but average citizens can do so as well for a host of different reasons.
We're going to talk about how the process works, how you go about filing a FOIA request, what happens once you do from the government's perspective, and then if you're unhappy with what you get or don't get, how you can contest that in court and what courts are ruling when FOIA cases come before them all here this afternoon.
We have four great panelists whom I'm going to introduce all at the beginning here so that we can immediately get to hearing their wise counsel. They are seated in order that they will present, so I will start to my right, your left, with Mr. Gary Lawkowski, who is currently counsel at Dhillon Law Group, where he works on political law, election law, administrative law, appellate issues, specifically dealing with nonprofits.
Before joining the Dhillon Law Group, Mr. Lawkowski served at the Department of Interior, advising the Secretary and other senior departmental leaders, as well as he served as a senior policy advisor on the White House Domestic Policy Council. He's worked at the Federal Election Commission under multiple chairmen and commissioners and earned his JD and his bachelor's degree both from the University of Virginia. So he's a double hoo, I believe they call them.
Seated to his left is Miss Alina Semo. She is the Director of the Office of Government Information Services for the Federal Freedom of Information Act's ombudsman's office—that's a mouthful—which is part of the National Archives and Records Administration before taking on that important role, which she will tell you about its important role, in serving as a non-adjudicatory—in terms of at least litigation—way to settle FOIA disputes.
She served as the Director of Litigation for the National Archives and Records Administration's Office of General Counsel. She's also served in the litigation unit for FOIA in the FBI—that must have been fun—as well as the Department of Justice trial attorney. She holds a Bachelor of Arts degree from the University of Maryland College Park, and her law degree is from Georgetown University Law School.
Seated to my immediate left is Ms. Katie Townsend. Katie is Deputy Executive Director and Legal Director at the Reporters Committee for freedom of the press, a nonprofit organization based here in Washington D.C. She oversees the litigation, amicus, and other legal work of Reporters Committee attorneys and represents the Reporters Committee, news organizations, and individual journalists—including documentary filmmakers—in court access, freedom of information, and other First Amendment matters.
She was previously an associate in the Los Angeles office of Gibson Dunn & Crutcher, and she's a fellow of the American Bar Association. She also graduated from the University of Virginia School of Law and got her bachelor's degree at the University of Florida, which has a slightly better football team.
And then, finally, at the end of the table is Mr. Ryan Mulvey. Ryan serves as policy counsel at the Americans for Prosperity Foundation. He also continues to serve in an informal role as counsel at the Cause of Action Institute. He regularly lectures on government transparency matters and litigates cases under the Freedom of Information Act and Administrative Procedure Act, and as a policy expert, he's called on to advise congressional staff about FOIA reform and other transparency issues. Ryan holds his degree from the University of San Diego and his law degree from Boston University Law School.
So join me in welcoming all of our panelists, and I will turn it over first to Gary, who's going to give us a little background on FOIA as well as how you kick the process off by actually submitting a FOIA request.
Gary Lawkowski: Thank you, Judge, and thank you all for being here. It's a lovely afternoon. It's April 25th, so it's the perfect day, and I appreciate you all being here. So the U.S. Constitution begins with its three most important words: "We, the people." With these little words, the framers made a relatively new, relatively radical declaration that sovereignty in the United States rests with the people and the citizen, not with a king, not with a parliament, not with the government in general.
And that's important to remember in our discussion here today. As Judge Vaden mentioned, when we talk about FOIA and we talk about these things, it's about how we, the people, can hold government accountable, how we can understand what's being done in our name, how we can make sure that government is functioning in the way that it's intended to where it's responsive to us and where we understand what they're doing.
So it's a mechanism for providing citizens a better understanding of their government so they can properly oversee the men and women who act in their name. Now, if you've spent any time in government fielding FOIA requests from a particular respondent or yourselves and reviewing them, that probably sounds like a bit of an overly idealistic take on things, right? That's not the feeling you get when you're going through your email trying to respond to these things. And in some ways, that probably is a bit of an overly idealistic view.
Even back in 1982, then-Professor Scalia wrote an article expressing concern about how this grand transparency measure was being co-opted by corporate lawyers and others at great expense to the government that had little to do with its grand transparency goals. And even today, that trend largely holds true to a certain extent.
According to a 2017 report from Columbia Journalism Review, 39 percent of FOIA requests are sent by businesses and nearly 17 percent of FOIA requests are sent by law firms, which constitute two of the largest groups of requesters, which are not the traditional thing you think of. But it's important when considering this to remember that, even in spite of that, where this comes from and why we have this, it comes back to that idea of we, the people, and how we, the people, are the ones who have oversight over the federal government.
So what is FOIA? What does it do? As Judge Vaden mentioned, it's a law that dictates how agencies make information available to the public. It was first adopted in the mid-'60s. It's been amended several times since then, probably most notably in '76, 2007, and 2016. And in general, it has provisions that are intended to, as Judge Vaden mentioned, prevent the rise of so-called secret law, the idea of we don't want governmental decisions to be high on a metaphorical pillar where they exist, but the people don't know what they are, they don't know what types of things are governing, what's happening to them, why decisions are being made, what's happening in their name, and what they're accountable for.
But it's best known for its ability for we, the people, the citizens, to request information from government, and under these provisions, any person can request an agency record. In order to make a request, a person just has to do basically two things: reasonably describe the records that are being sought and follow agency rules for submitting a request, including agreeing to pay any applicable fees.
In general, fees are limited to reasonable standard charges for documents search, duplication, and review. And once you make a request, the department generally has 20 business days to make a determination. That's become a bit of a term of art that we'll get into a little bit. And an agency gets an extra 10 business days when it can cite certain unusual circumstances that justify taking a little longer.
So first, what's an agency record? It's generally any tangible thing that conveys information. It's usually defined pretty broadly, particularly when you're talking about the core governmental activity, when you're talking about things that are created by government employees on government time for a traditional government agency.
In most cases, you're not likely to find yourself fighting about what an agency record is or whether it counts or not; however, there are a couple of big exceptions that come up every now and then. First, FOIA only applies to the executive branch. As Congress is wont to do, they did not apply a transparency statute to themselves; they applied it to another branch of government. It also does not apply to the judiciary.
Second, employees' personal notes and communications are not covered by FOIA. Now, that can be a little tricky, depending on kind of what counts as personal and what counts as official. We've seen that particularly when you're talking about the use of personal emails, personal phones to conduct agency business. When is that an agency record? When is that something that's within the possession and control of the agency versus when is that a purely personal thing? Now, the D.C. Circuit has said, at least in some circumstances, those records are FOIA-able, and that's a case called Competitive Enterprise Institute, v. Office of Science and Technology Policy.
Finally, governmental bodies that are not traditional agencies can also pose some challenges. So some things like Amtrak can occasionally be FOIA-able. The other big area is the Office of the President is not generally foible, although certain sub-agencies within the Office of the President are just to make things more confusing for the everyday requester.
Now, thinking about agency records can also help to think about FOIA exemptions, and we mentioned those. I think some of our panelists are going to dig into that a little bit more, but at the out-front, I'll just note a couple that are relevant in thinking about when you're putting together requests, what you're going to make and what you want to ask for.
For example, pre-decisional deliberative documents are generally going to be subject to an exemption, as are many law enforcement records. Those are things to think about when you're thinking, "What do I want from an agency? Is this something I'm going to be able to get?" So let's say you found an agency; you want to get information from it. What do you do next?
The next step is reasonably describe the information that's sought. Now, this tends to be one of the trickier parts in making a FOIA request. After all, in many cases, the whole reason you're asking in the first place is you don't know what the government's doing. You want to know; you don't know. So how do you square that circle?
There's an asymmetry of information in most cases. The agency knows what it's doing, in theory; you, on the outside, don't. The general rule is that the description of a record just has to be good enough for a professional agency employee familiar with the subject to locate the record with a reasonable amount of effort.
We're not asking people to kill themselves doing this. We're not asking for them to just be able to throw a dart on a wall and pick something. We're also not asking you, though, to come up with the exact title, internal database citation for a particular document you're trying to find.
So there are a few assumptions that are baked into the standard, and I think it's generally necessary to make the system work, such as it does work. One of them is that the agency employee tasked with evaluating your request is reasonably familiar with the subject area. Now, in my limited experience, such as it is, it varies from department to department, but particularly for a lot of larger agencies, this is a bit of a legal fiction.
In many places, FOIA officers and officers are somewhat separate from the program offices that are actually doing the work. The result is that, in practice, the person you're talking to in the FOIA office likely does not know a whole lot more than you do about what you're asking for or what the agency's actually doing. In many cases, they may even know less because you've researched this and you've decided this is something you want to know about.
So it's not always possible—it's not legally required—but there are a couple of things you can do to get around this problem. First, the more you can identify the people who are likely to have the records you're looking for, the better. Even if you don't know, "All right, I'm looking for Gary's records," if you can identify, "All right, I think the undersecretary for big muckety-muck government stuff is likely to have this," you can ask for that office or you can ask for that title or you can ask for certain people associated with that, and that can help narrow it down a little bit.
Second, if you can offer suggested search terms, that also can help a lot. Again, the agency officers you're interacting with often don't know who did what on a particular record. The result is that, in many agencies, when they talk about doing a search, especially now when so much stuff's been electronic and you have so much email, their search essentially consists of basically running a literal internet search through their -- or keyword search through agency employee emails.
So if you have a sense of what you're looking for, the more you can suggest, "Hey, here's some good words that are likely to pull up the type of records I'm looking for," that can make it a lot easier for them to go in and say, "Okay, I can figure out how to do that." They just type that into the little system, it pops up, and there we go. We're off and running.
And the third thing you can do is offer a date range. This is also helpful to avoid the charge of, "Well, you're seeking everything that's ever been created in the history of time." You could say, "Well, no, I'm looking for a two-month period here with the search term of 'Gary's a terrible lawyer,' and I want to find it in this set of emails." If you can do that, that's a very easy, reasonable search that an agency employee can run and that even someone who's not as familiar with the records as they're supposed to be can try to track down.
Now, there are also a few what I'll call trigger words you're going to want to avoid when writing FOIA requests, specifically words like any, all, and related to. The government is very fond of a case out of the D.C. District Court called Freedom Watch, Inc. v. Department of State. It's from 2013. In that case, the Court stated, since the request asked for all records that relate to each subject area, they were inevitably subject to criticism as overbroad since "life, like law, is a seamless web and all documents relate to each other in some fashion."
So those are words you may want to try to stay away from to try to avoid them saying, "Well, anything could relate to anything else" or "Well, how am I possibly supposed to find every, all, or any record?" Now, I think that quote kind of overreads the case about the problem that comes up a bit.
Now, moreover, in at least one district court case, Gun Owners of America v. Federal Bureau of Investigation, the courts clarified there's no bright line prohibiting that language, but it's still better to avoid it when you're writing a request. Also, frankly, it doesn't get you very far in terms of getting more of what you want.
The government and the agency's obligation is to conduct a reasonable search for responsive records, which means that they're going to do what's reasonable regardless of whether you said all, any, every. So it doesn't really add a whole lot to what you get, but it can make it harder to get through the motion to dismiss stage.
The next thing to consider is whether you want to request a fee waiver. The first thing to know is, following the FOIA Improvement Act, agencies generally cannot charge fees if they fail to make a determination within the statutory time limit. So, as you may guess, government moves at the pace that government moves. They often miss those deadlines, especially for more complex requests that are likely to have a higher fee at the end of it. And for many that have a strong public interest, these are also going to be the same types that are likely to miss that deadline.
There are a couple of limitations on the agency's ability to charge fees. First, they can be reduced or waived if disclosure is in the public interest because it's likely to contribute significantly to the public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester; in other words, that classic "we, the people" oversight-type function.
Second, fees are limited to duplication costs—which, in the electronic age, is not a whole lot to put it on a disk or put it in an email and send it to you—if a request is not for commercial use and it's made by an educational or scientific research institution or representative of the news media.
Now, if you're trying to avoid fees, I would say take a close look at whether or not you're a representative of the news media, particularly if you're not acting in the name of a corporation or a law firm. So if you're coming in, in a public interest group, I would take a real close look on if you're a member of the news media. That's because of a case that I believe a couple people over there may be very familiar with, Cause of Action v. FTC, from 2015 where the Court set out of five-part test for the news media.
So it gathers information of public interest to a segment of the public, uses skill to turn that into some sort of distinct work, and distribute it to an audience. Now, when they're doing that, though, that can be as simple as drafting a press release about what you found and putting it out. The courts say, "Look, it doesn't matter how big your audience is. It doesn't have to be something elaborate. It doesn't have to be you're writing the Pentagon Papers, you're writing 1000-word expose for the New York Times." It can be as simple as writing a press release about, "Hey, here's what I found" and sending it out to a relatively limited group of people.
And that can make you the press in this new media age. So it's something to consider if you're worried about fees and you're more of a public interest group and you don't necessarily want to go through the public interest prong of the request because you may be a member of the media. It's something to check out.
Now, if you're making a request that may be of the public interest, there's an additional reason you may want to ask for a fee waiver, even if you're not sure you're going to get it, even if you're not sure you're going to need it, even if you think, "Oh, they're never going to get this done on time."
When evaluating whether a request reasonably describes the records that are sought, courts have said that the agency has to look at the other context in the request to figure out if there are vague words in there. What are they really asking for? And if you describe what your public interest is, which is required, to try to get that fee waiver exemption, that also puts the agency on notice of, "What's the core of what I'm asking for? What's the nucleus of what I'm seeking?" It makes it a lot harder to say, "Hey, this request is way too broad. We can't possibly figure out what you're saying" if you say, "Well, I want X, Y, and Z records because of these reasons." So it can help you -- It's another way to help make sure your request isn't overbroad.
So you've made a valid FOIA request. It's gone to the agency. You're requesting your fee waiver. Your documents are super important. You can't wait to get them and tell everyone about them. What comes next? Well, by statute, the agency is supposed to make a determination within 20 business days with that option, again, to extend by 10.
Now, you may think "Great, I'm going to get my documents in 20 days. I can wait that long." I see at least one person laughing. You must have made a request before and tried to get them within 20 days. This being the government, it does not quite work that way. Under the leading case, which would be CREW v. FEC from 2013—I believe it was written by now-Justice Kavanaugh—an agency need only indicate within the relevant time period the scope of documents that it will produce and the exemptions it will rely on. They don't actually have to give you the documents yet.
Now, that may sound like, "What is this? That's terrible," but that's actually a huge improvement over what agencies were trying to do, which was basically say, "Well, we told the requester we'll get to it at some point. We determined. We're good, right? We'll get to it when we feel like it." The court said, "Well, no, you got to do a little more than that."
So if an agency -- and it's important because if an agency doesn't make a determination within the appropriate time, you're considered to have exhausted your administrative remedies, which is your first step into court to get a judicial oversight over the executive branch. Now, under FOIA, if you're worried about the timeframe, there's also the possibility of seeking expedited processing. That is, "I want the documents faster." Here's a process to do that.
These requests are granted by establishing a failure to obtain the records will pose an imminent threat to life and personal property, which is usually a relatively high bar to clear, or if you're a person primarily engaged in disseminating information and you can show that there's an urgent need to tell the public about this. It's tough to get expedited processing on a lot of stuff. I'll just throw that out there early on. And even if you do, it doesn't always get you as much as you would hope it gets you, but there is that process there.
Now, there's a lot more I could say about that, but in the interest of time, I'll just flag three other issues that we may discuss as we go through the panel or as we get through question and answer. First is what I've termed Schrodinger's FOIA request. These are requests that are both somehow simultaneously alive and dead until a court observes them.
And where this is coming from is, in CREW, there's a footnote that says the clock doesn't start ticking on a determination until agencies have a valid FOIA request. So what we're seeing is the government coming into court when you finally say, "All right, I'm sick of this. It's been X number of days. We're going to go to court. We're going to try to get these records from you." What we're saying then -- What we're seeing then is the government coming in and arguing, "Joke's on you. You never actually had a valid FOIA request. We never had any obligation to process it. Therefore, we don't have to do anything. Thank you for coming."
We're seeing this even after they present requestors' messages saying, "We are processing your request. We've conducted the search for your request." They're still coming in and making this argument of, "Well, it was never a real request to begin with. The only way you could possibly know is sue us and I guess you'll find out."
Second, there's another question that's come up and it's related is, do agencies have a duty to confer with requesters under FOIA if a request is overly broad before rejecting it? At least two courts in D.C. have taken different views on that question. The court in American Center for Law and Justice v. DHS held there is not such a duty under the Act. There's no duty to confer. By contrast, the court in Charles v. United States found there is such a duty under both FOIA and DOJ regulations.
Now, those issues are related and both get to the question of what happens when an agency sits on a request for a while, strings them along, and says, "We'll get to it some time." This is the intention with the CREW decision, which held that, "No, you really need to give a better answer than that," but it's something that's still developing. It's something to keep an eye on. I suspect courts will be reluctant to impose something like almost estoppel doctrine on agencies if they sit on things too long, but it will be interesting to see how they resolve those two questions going forward.
The final point I'll raise and then wrap it up is, it's one thing to say you'll get the documents. It's another thing to say when. And we're starting to see agencies more and more say, "Oh, yeah, you'll get them," go into court and say, "Oh, yeah, we'll get those to you," but then push down what the pace of production is, so it's taking longer and longer.
And that's one big difference between, say, FOIA and discovery is, if I went to a court and said I need two years to process 6000 documents for discovery, the judge is gonna laugh me out of court and possibly hold me in contempt by the time I'm done making that argument. Somehow the government, though, can go into court and try to make that argument with respect to FOIA and do it with a straight face. And with that, I'll move on.
Alina Semo: Tough act to follow. Hello, everyone. Thanks again for inviting me to participate in today's panel. I am Alina Semo, Director of the Office of Government Information Services, or OGIS, which is part of the National Archives and Records Administration. Just a disclaimer: I don't know anything about what's going on with the presidential records or vice presidential records. I had a friend who invited me over for dinner a few months ago who thought that I would have a lot of information for him and was pumping me. I said, "I know nothing," and that's a good thing. I just know as much as what everyone else is reading in the paper, so I can't answer any questions on that.
So for those of you who are not familiar with our office, OGIS was created by the Open Government Act of 2007, and our mandate was expanded substantially through the FOIA Improvement Act of 2016. I'll talk about that in a minute. We opened our doors in September of 2009.
So what is OGIS's mission? First, we are responsible for reviewing agency's FOIA policies, procedures, and compliance with the statute and identifying procedures and methods for improving FOIA compliance, and we do that in a variety of ways, including targeted agency assessments; more general issue assessments through our work on our FOIA Advisory Committee, which I chair; and our work co-chairing the Chief FOIA Officers Council.
Second, we are charged with providing mediation services to help resolve disputes between requesters and federal agencies as a non-exclusive alternative to litigation, and I'll get back to that in a minute. As the federal FOIA ombudsman, we serve as the listening ear for the FOIA process across the entire federal government. We report on the FOIA landscape and make recommendations for improving the FOIA process in a variety of ways.
OGIS receives more than 4000 requests for assistance each year. The majority of those seeking our assistance are simply confused by the FOIA process, which is understandable, given everything Gary has told us. The FOIA Improvement Act of 2016 mandated that agencies inform requesters of OGIS's dispute resolution services whenever there is an adverse determination.
So, since 2016, FOIA requesters have been coming to OGIS at any point during the administrative process. Increasingly, requesters come to us even before they have received an agency response, very concerned about delays, and I'll talk about that in a minute as well. In our dispute resolution program, we do not dictate solutions or tell agencies they have to turn over records.
We sometimes do joke we are not the FOIA police, but we're not. We cannot write tickets for noncompliance or failure to participate in our mediation process. Rather, our mediation services are completely voluntary, and we have had both agencies and requesters participate or declined to participate. Most often, we act as a facilitator to help agencies and requesters better understand the issues and the other side's position.
The FOIA statute specifically says our mediation services are a non-exclusive alternative to litigation. So what does that mean? We try to prevent litigation by explaining the FOIA process, how the search is conducted, or an explanation of the records withheld under the exemptions that have been cited by the agency, but a requester is not prevented from filing suit after going through our process.
Generally, once the case is in litigation, we do not get involved. That said, explanations that OGIS just provides lets the requester better understand the agency's response, and a number of requesters have told us, after they've worked with us, that they understand why the information was withheld or why the agency search did not locate any responsive records.
We also engage in a number of other activities, including outreach. We have regular meetings with a variety of stakeholders, including public meetings and events. We participate in a range of training and teaching activities. We chair the FOIA Advisory Committee, co-chair the Chief FOIA Officers Council—there was a meeting earlier today—and I also serve as an ex-officio member of the Chief Data Officers Council along with the Director of the Office of Information Policy at the Department of Justice. In short, we advocate for a fair FOIA process for all.
So one of several ways that just tries to improve the administration of FOIA is through our work on the FOIA Advisory Committee. The committee brings together members of the FOIA community from inside and outside of government, all appointed by the Archivist of the United States, to collaboratively identify the greatest challenges in the administration of FOIA and develop recommendations for the archivist.
There have been four complete terms of the committee thus far, and we are nearly a year into our fifth term. The committee's three subcommittees—resources, modernization, and implementation—have been meeting every other week and are hard at work. And I hope all of you here can join us virtually for the next committee meeting on Thursday, June 8, starting at 10 a.m. Registration information will be available on our website, www.archives.gov/OGIS.
As of today, the committee has made a total of 51 recommendations, has advanced over 35 best practices. They cover a broad range of topics all designed to improve the FOIA process and access to government documents. And we have created a terrific recommendations dashboard in order to keep track of all the great work the committee has done to date and which we update periodically. And in fact, we recently updated that, so I invite you to visit our website for more information on that.
Just earlier today, I co-chaired the Chief FOIA Officers Council along with the Director of the Office of Information Policy at the Department of Justice, and that council was mandated by the FOIA Improvement Act of 2016. Gives us more work with a lot more fun, but a great ability to actually reach out to both the public and our federal FOIA family.
As a result of two different recommendations made by the FOIA Advisory Committee, the CFO Council has created two very active committees: the Technology Committee and the Committee on Cross-Agency Collaboration and Innovation. Our chief FOIA Officer Council meetings and our FOIA Advisory Committee, public meetings are all recorded and available on the National Archives YouTube channel, so I invite all of you to watch. And in fact, today, the Technology Committee and COCACI committee gave updates on all the great work that they're doing.
So I wanted to just talk briefly about the effects of the pandemic, which we can't ignore. It's still, I think, being felt throughout the FOIA infrastructure, if you will. Certainly, the COVID pandemic challenged both FOIA requesters and agency professionals government-wide in a number of unanticipated ways.
OGIS observed that many agencies' FOIA programs were doing their best to adjust their operations in response to the impact of COVID. We heard success stories of FOIA programs and certain agencies that managed to make a relatively seamless transition from full-time, in-office work to 100 percent or close to 100 percent telework.
We also heard of challenges that other agency FOIA programs faced, particularly those agencies in the intelligence community that can only process their records that are stored in and retrieved from classified systems of records from secure physical space. As intelligence community agencies adjusted their processes in response to the pandemic, they were forced to prioritize mission-critical functions over non-mission-critical work, such as FOIA.
In our mediation work, we have continued to see a sharp increase in delays. The number of requests for assistance related to delayed FOIA requests has increased significantly as agencies' backlogs have continued to increase. We have also observed a growing reluctance from some agencies to provide an estimated date of completion, an EDC, which is a legal requirement of the FOIA statute.
Agencies are required to establish a means of tracking cases and communicating with requesters, including providing an estimated date on which the agency will complete action if the requester requests such a date, but beyond that legal requirement, we view providing an EDC as a great opportunity for an agency to open conversation with requesters. We're huge supporters of that.
Presented with an honest assessment of the time it would take to complete a FOIA request, requesters may be more willing to narrow the scope of the request or perhaps prioritize the request to allow for rolling releases. This has the potential of a win-win, as it may result in less work for the agency, quicker responses for requesters, and possibly a decreased risk of litigation.
In 2020, right as the pandemic was beginning, OGIS issued an assessment report, an advisory opinion, and a FOIA ombuds observer on EDCs, which I invite all of you to visit on our website. And in June 2022, last year, we hosted a panel discussion at our annual open meeting on the issue of EDCs with three agency representatives who have established successful procedures for providing EDCs for their agency.
But we continue to have dialogue with both agencies and requesters about this topic, as we have a number of requesters who've come to us frustrated they're unable to get an EDC, which leads me to a few final statistics that I wanted to share. This past fiscal year, 2022, federal agencies received in excess of 928,000 FOIA requests. This shattered the previous high of 863,729 requests in fiscal year 2018, and some predict, next year, the number of requests will top one million.
Federal agencies also processed a record number of requests this past year, close to 864,000. The Department of Homeland Security, DHS, received the most requests, 539,807, followed by the Department of Justice with 93,370 and the Department of Defense with 54,004 requests.
Although some agencies managed to reduce their request backlog, overall, the request backlog for the federal government grew approximately 34 percent, and that is consistent with what OGIS is observing through our dispute resolution practice. And although we do not have empirical proof of this, it is my theory that the effects of the pandemic are reflected in these increased numbers; the delayed effect, if you will.
As for costs, agencies spent in excess of $543 million processing requests. This is up from 522.8 million in the prior fiscal year. But I want to point out that the federal government collected a very small percentage of that number in fees charged to requesters, only $2.19 million. That's only .4 percent, up from $2.09 million in the prior fiscal year, .39 percent. So I think that's important to keep in mind.
And finally, a good segue for Katie's and Ryan's subsequent presentations, the federal government spent in excess of $40 million defending FOIA lawsuits last year, an increase of $2.4 million from the prior year. I just want to end by saying OGIS often solicits input from the FOIA community, and I want to hear from everyone here in the audience.
I look forward to questions. We want to hear from both requesters and agency FOIA professionals. I invite all of you to subscribe to our blog, The FOIA Ombudsman, and follow our Twitter feed. Unfortunately, I think we just recently lost our blue checkmark, but stay tuned. But ultimately, it is our goal to help improve the FOIA process for both requesters and agency FOIA professionals. So with that, I want to pass the baton over to Katie.
Hon. Stephen Vaden: So we've filed our request. We've sought some non-court intervention to try to get what we want from the agency. We're still unhappy. Take us to court, Katie.
Katie Townsend: Oh, I'm happy to do so and happy to be here. As Judge Vaden indicated in his introduction of me, I oversee the legal programming at the Reporters Committee for freedom of the press. We're a nonprofit dedicated to defending the First Amendment and news-gathering rights of journalists and news organizations, and one way that we do that is through litigation.
Our impact litigation program is quite access focused, and by that, I mean we do a lot of work in the areas of federal Freedom of Information Act, state public records laws. I think we're not talking about that here, because it's not relevant, but every state but the District of Columbia has a law that looks a lot like federal FOIA. We also do a lot of access to judicial records and proceedings work in the courts under the common law and First Amendment.
So those are the different access regimes. I would say, frankly, about 75 percent-plus of our litigation of the Reporters Committee is in those areas. Journalists and news organizations are frequent FOIA requesters and frequent users of FOIA, and so we often find ourselves litigating FOIA requests.
And I'm going to play off of Alina's comment about delay because I'm going to get to that in a second. Whenever I talk about FOIA, I always end up complaining a lot, so you're going to hear me complain, but before I do that, before I complain, I think it's really important not to lose sight of the fact that FOIA is a really important and can be a very powerful tool for transparency. Our clients utilize it frequently.
I can give you lots and lots and lots of concrete examples of really important information that's been brought to light through use of the FOIA process. And just to give you one example that I particularly like to talk about, in part because it's recent, but also in part because our clients won a Pulitzer Prize, so that's something I like to tout, when a freelance journalist, Azmat Khan, came to us at the Reporters Committee, she had unfulfilled, unanswered, unresponded to FOIA requests to the Department of Defense relating to hundreds of civilian casualties incidents from the United States-led air war in the Middle East: Iraq, Afghanistan, and Syria.
Through years-long litigation that is still ongoing in the Southern District of New York, she was able to obtain the thousands of Pentagon records, some of which were previously classified, that form the backbone of the civilian casualty files. And that was a front-page series that ran in the New York Times in late December of 2021. It really laid bare, I think, the true human toll of those airstrikes in a way that hadn't been seen before, and she was the recipient of the Pulitzer Prize in connection with that reporting.
That is truly news reporting that could not have been done without FOIA, without the Freedom of Information Act, and also, frankly, without litigating. So I think I like to always highlight that there are really positive things about FOIA before I do what I'm going to do now, which is to turn to problems, the problems that I think really prevent FOIA from living up to its promise.
And to be honest—and I think we'll talk a little bit about this to be completely candid—those problems aren't issues with the statutory text; they're really issues with compliance at the agency level and, frankly, judicial enforcement of FOIA-specific provisions. The two biggest issues that journalists and news organizations come to us at the Reporters Committee and ask for assistance with is delay and overuse of exemptions.
And I'm going to start with delay because delay is, first and foremost, the biggest problem that we hear about from our constituency, for lack of a better way to put it. Journalists want information, and they want it now. So that maybe perhaps is not too surprising, but the delays that are kind of endemic, I think, to FOIA process now are really forcing more and more requesters who might not otherwise litigate into litigation.
So the increase in delay and the increase in backlogs that Alina referenced—and I do think that that issue has worsened over the course of the pandemic—and particularly with respect to intelligence agencies and other agencies that were not in a position to or have the ability had the capability of reviewing records off site, running searches and reviewing records off site, that really increased.
We just saw FOIA offices shut down, FOIA processing for periods of time during COVID, and that really increased the backlogs. As a result of those backlogs, we're seeing more and more delay. It is quite uncommon, frankly, for you to get a determination within the 20-day deadline that's set by FOIA. Often, you'll get a confirmation receipt, "We got your request," but you're not getting a determination.
If you do not get a determination within the statutory timeframe, you do not need to exhaust administrative remedies. You do if you get a determination, but you don't if you don't get that determination. And so what we're seeing is a lot of journalists coming to us wanting to sue pretty promptly after that time period passes because that's the way you, quite bluntly, move to the top of the line.
So once you're in litigation, you can get a processing schedule. It may not be a fast processing schedule; it may be 200 pages, 300 pages, 400 pages a month, but it is much faster than what you would get if you weren't in litigation at all. And so I think a lot of requesters, particularly journalists and news organizations, are resorting to litigation almost as a first choice because they know that's the only way they're going to speed up processing of their requests. I, frankly, don't think—and I've said this before in other panels—that that's a good way for the system to operate, but that is most certainly the situation that we're in currently.
The other issue I wanted to talk about was the overuse of exemptions. Where we see this quite frequently is, with respect to law enforcement agencies, the use of Exemption 7. So for those of you who are not as steeped, I guess, in FOIA as some of us, Exemption 7 is for records of law enforcement agencies, and there's a number of sub-parts to that. So Exemption 7(c), for example, covers privacy information. There's a privacy balancing test within those records. Exemption 7(e), for example, addresses law enforcement techniques not known to the public, and that's within those records.
And so those subdivisions in Exemptions 7, if you make a request, which often journalists and news organizations do, to law enforcement agencies—so any component of the Department of Justice, including the FBI, but also agencies like Customs and Border Protection—you're often going to see Exemption C cited. You may get really extensive redactions, and I'm talking about once you're in litigation, because again, you typically have to file a lawsuit to get those records processed.
The other area where we've seen exemptions be significantly overused—and I think this is going to dovetail a little bit into more of a discussion about the FOIA Improvement Act of 2016—is Exemption 5. So what Exemption 5 was intended to do was really codify common-law privileges that would be available to the government if the government were a party in litigation.
So you can think of the obvious ones: the attorney-client privilege and work product doctrine. There's also the deliberative process privilege. The deliberative process privilege has been called by those in the FOIA requester community—maybe Ryan knows who initially coined this term, but I don't—the "withhold it because you want to" exemption. It is extremely over-utilized by agencies.
And as a result, it's an area where, certainly requestors in litigation, I will tell you—I've said this before—we look very, very carefully at Exemption 5 withholdings, particularly in the context of litigation, in part because I can tell you almost every case I've litigated, there has been Exemption 5 deliberative process privilege withholdings that were improper, and it's just an exemption that's consistently overused.
So the goal of that exemption of the deliberative process privilege is to facilitate, similar to the attorney client privilege, the full and frank discussion among agency personnel in the context of a development of a policy. So you have to have a decision, you're talking about the decision making process, and those communications that are both pre-decisional and deliberative -- And these are terms of art that have been interpreted in the case law. Those pre-decisional, deliberative communications are then covered by the privilege.
FOIA officers apply this privilege pretty broadly. And I think it was so apparent the overuse of Exemption 5, and the deliberative process privilege in particular, that Congress, when it passed, the FOIA Improvement Act of 2016, was really particularly focused on reducing exemption assertions with respect to what we call discretionary exemptions.
So just to take a step back for a second, there are exemptions under FOIA where the agency is actually required, it's mandated, to withhold the information. The classic example of that would be Exemption 1, classified information. The agency doesn't have -- The agency officers don't have -- FOIA officers don't have discretion to release that information, even though it falls within the scope of that exemption, but most of FOIA exemptions, including Exemption 5, are discretionary.
In other words, the agency can withhold information that falls within the scope of that exemption, but it doesn't need to. It's not required to. That overuse of discretionary exemptions, Congress thought, was a real problem. It led to the passage of the FOIA Improvement Act of 2016. The FOIA Improvement Act of 2016 does two key things with respect to Exemption 5.
First, it put in place a 25-year sunset on the use of the privilege. So if you're having -- If you're asking for a record that's 30 years old, 40 years old, 50 years old, the agency cannot assert the deliberative process privilege to withhold that. On top of that, Congress enacted the foreseeable harm provision, which is applicable to all discretionary exemptions in the FOIA, or under the Act.
What that does is require the agency -- Actually, I'll put it this way; it's a little easier to understand -- prohibits the agency from withholding information or portions of records that are subject to a, I'll just say discretionary exemption for now, unless the agency can demonstrate that disclosure of that information, it is reasonably foreseeable, will result in harm, a harm that the exemption was intended to protect.
And so that's an additional added burden on top of just demonstrating that the exemption applies in the first place. The Reporters Committee, along with the Associated Press, litigated I think what's fair to say is that leading case on interpreting the foreseeable harm provision in the D.C. Circuit. That was a case against the FBI in 2021, and that decision really puts a fine point on what the agency's obligations are under the foreseeable harm provision.
Agencies have to concretely explain how disclosure would—not could, but would—result or adversely impair internal deliberations, and this is under Exemption 5. So a perfunctory statement, the disclosure of the withheld information, regardless of its category or substance, would jeopardize the free exchange of information between senior leaders within and outside the agency, that's not sufficient.
What the agency needs to do is provide a focused, concrete demonstration of why disclosure of the particular type of material issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward. This is a very context-specific inquiry, and it's a pretty high burden for agencies to meet in litigation.
I will say that the issue that I am seeing, I think, and I think is unfortunate, with respect to the application of the foreseeable harm provision is, once we get into litigation, we can really press on that standard and point to that high burden that the agency needs to meet to justify withholding material that falls within a discretionary exemption, particularly under Exemption 5 and the deliberative process privilege.
But what we're not seeing is agencies at the agency level incorporating that high standard and leaning towards disclosure, which is really what the foreseeable harm provision was enacted to do. It wasn't just intended to give requesters an additional argument to make in litigation; it was intended to shift agency behavior at the agency level to get agencies to release more than they would have released prior to enactment of the provision. "Because it falls within the scope of the exemption, we're going to withhold it."
There's an initial inquiry you need to conduct. We're not really, quite honestly, seeing agencies conduct that initial inquiry, and I think that's pushing a lot of these foreseeable harm issues into the litigation realm where it would be much more beneficial, I think, if agencies were conducting that analysis more carefully at the actual agency level when they're responding to a request.
So with that, I think I'll stop there because I'm mindful of the time, but I'm sure we'll have much more to talk about with respect to exemptions.
Hon. Stephen Vaden: So, Ryan, how can we use FOIA in a strategic way in order to investigate something that needs to be brought to public light?
Ryan Mulvey: Before I get to that, I'd actually like to just step back and dwell on something, Judge Vaden, that you commented on at the outset of this panel, and it's something that really marks FOIA and sets it out as an oddity in the grand scheme of American law. You called FOIA a sort of privatization of oversight, and I think that's a very interesting way to describe the exceptionalism of FOIA.
There are not very many instances in which Congress has delegated to the people a way to enforce certain rights. You can think of the False Claims Act and qui tam suits, for example, right? But with FOIA, there's something really remarkable there. FOIA is also really remarkable -- And I'd be remiss not to address this because this panel is organized by the administrative law practice group that The Federalist Society is.
FOIA is part of the APA, but it's really not, all right? It's part of Title V, but it really bears no resemblance, certainly not in practice, to the rest of the APA. And there's a few reasons why that's the case. I think, first of all, just FOIA practice and judicial review is very informal. You know, you file your complaint; the agency files an answer.
And I would submit that the statute and many of the controlling cases set out what litigation is supposed to look like, but really, what ends up happening is that you have the court tell the parties, "Try to figure it out." And then the requester has to fight with DOJ to get a processing schedule, and the court may or may not be too enthusiastic in intervening and, in more cases than not, just lets, in my experience, the agency take its time.
But even more alarming: If you're trying to -- If you're an admin lawyer, you practice with the APA, and you're stepping into FOIA for the first time, there is no administrative record that is lodged in a FOIA case. There is also no discovery in FOIA, with very limited exceptions. The way FOIA works is, at the time of summary judgment, each party gets to put in a bunch of declarations, and the court decides the case on that basis. And that is a very, in my mind, striking difference from the way that administrative law is supposed to work.
Another very interesting differences that there are multiple rounds of summary judgment in FOIA. Typically, if a court is not convinced that the government has met its burden under the statute to justify withholding, what it does is it tells the agency, "File supplemental declarations."
A pessimistic or a cynical lawyer from the requester community might call that laying out breadcrumbs for the agency to take another bite of the apple, if you don't mind me mixing metaphors there. And you have FOIA cases that have three, four, five rounds of summary judgment until the court is satisfied that the agency has made its case.
FOIA also is supposed to have de novo review, and obviously there there's no Chevron-type deference under FOIA, but even with de novo review, courts have, over the decades, developed a series of approaches to reading government declarations that basically give very strong deference to agencies.
There is an extension of personal knowledge. I don't want to call it a loosey-goosey application of the FRE, but there's definitely a case law that basically allows the court to give supervisory officials and FOIA officers -- they extend to them personal knowledge, even over matters that don't pertain to the processing of a request.
So, for example, if an agency is going to assert the presidential communications privilege, which you would think would require some sort of declaration from the White House, no; the FOIA officer can tell the court how the White House might use its record, and that's acceptable.
There's a presumption of the regularity of agency operations. And there's, more than anything, a presumption of good faith that's very hard for a requester to rebut. You basically have to have extrinsic evidence that you can bring in to disprove what an agency might put in its declaration.
So I know, I avoided your initial question there, but I did want to make sure I pointed that out because, again, FOIA is a very odd duck in the realm of American jurisprudence.
Hon. Stephen Vaden: And on the positive end, unlike in a normal APA case, the government bears the burden --
Ryan Mulvey: That's true. That's true.
Hon. Stephen Vaden: -- rather than the challenger.
Ryan Mulvey: Yes, that's right. I think some in the requester community might say that, although the government bears the burden, it's rather easy for it to do so. I think that's beginning to change. The FOIA Improvement Act has helped take a step in the right direction. With terms of strategic FOIA, I would say that any lawyer who's not using FOIA in addition to discovery isn't doing his or her job.
You should be filing FOIA requests. And certainly, if you're a public interest-type group, a nonprofit group that's doing good government work—and I think Gary had alluded to some of this at the outset—FOIA is an extremely powerful tool for leveraging your collateral litigation efforts.
So if you're bringing an APA suit against an agency because you're arguing that an agency regulation is ultra vires or otherwise isn't statutorily authorized—the agency can't do that—you should be doing FOIA on the side to find out who is behind these rules, who is behind the agency action, who is the agency talking with. This is the way that FOIA can really help those types of groups.
Two more quick areas I want to touch on before we move to discussion. The first is where there are up-and-coming issues in FOIA and where the fights are going. Two big areas, which Gary mentioned at the outset, are motions to dismiss, so 12(b)(6) motions to dismiss on the ground that a request is invalid, that it doesn't reasonably describe the records.
There's also been, I think, a noticeable uptick, many requesters would argue, in agencies at summary judgment arguing that requests are too burdensome to process. And there's a conflation between reasonable description and unduly burdensome, between whether you should be making these arguments of 12(b)(6) around summary judgment.
And, unfortunately, courts have started to give credence to agency arguments that, despite DOJ, OIP guidance to the contrary, has started to accept agency arguments that requests are too voluminous to process, notwithstanding the agency's ability to design and implement a search, which is really what the standard is for request validity.
The other issue is what it means to promptly produce records. So the requirement to provide a determination within 20 days—or, with the extension for unusual circumstances, within 30 days—is separate, as I think everybody has mentioned so far, from the requirement to actually produce the records to the requester. There, the statutory standard is "promptly."
Now, the way the statute is set up and the way the controlling cases -- For example, Open America. It's a case called Open America in the D.C. Circuit, the expectation on paper is that, once a lawsuit at least is filed -- Set aside would "promptly produce" means in the administrative processing stage.
In litigation, unless an agency is able to convince the court to issue an administrative stay of proceedings, it should be producing the records. That is no longer typical practice, at least in the DDC, in my experience. What happens now is agencies don't move at all for an Open America stay. They say, "We don't need it," and the court just says, "Negotiate with the requester for when you're going to get the records."
And for a long time, you had courts willing to enter scheduling orders with rather vigorous production timelines. The FBI, I think, was the originator of the argument that 500 pages per month is the most reasonable standard, and that ended up being accepted. But now—I don't know if the rest of you, Gary and Katie, have experienced this—a lot of agencies are arguing that 500 is too much and that they need to produce even fewer records per month.
Four more quick issues that are up and coming where there are splits right now. Remedial authority of courts to require agencies to comply with the proactive disclosure sections of FOIA. So we've been talking about Section 3 of FOIA, which is reactive disclosure if an agency gets a request. There's also a Federal Register publication requirement and a reading room requirement.
And these are the sorts of things that Judge Vaden mentioned at the beginning that were brought over from Section 3 of the 1946 APA and were the sorts of documents that might reflect secret law that Congress was so concerned about. There's a split between the D.C. Circuit on one side and the Ninth Circuit and the Second Circuit on the other as to if a claim under A(1) or A(2), the proactive disclosure sections, is brought and the requester prevails, what can the court order?
Can the court order the agency to put stuff into the reading room or into the federal -- The cases are about the reading room -- into the reading room, or can it just order the agency, in the future, under injunction, to disclose to the requester what would have been put into the reading room?
Hon. Stephen Vaden: And to be clear, the reading room is on the website where frequently requested documents—that's the keyword—are to be put. And the statute defines frequently requested documents, and the key definition is a document that has been requested at least three times.
Ryan Mulvey: Right, three or more times, records that might be of public interest. And the sorts of things that really don't get requested, like orders, opinions, dissents, that wouldn't be published in the Federal Register. So that's a big split. There's a split that now is developing on the concept of a policy or practice claim. I won't get too deep into that, but just to note that there was a very strong concurrence—strong in the sense of animated—from Judge Menashi on the Second Circuit rejecting the very concept of a policy or practice or pattern and practice claim, which has kind of developed over the past 40 years in the D.C. Circuit.
There is a split between the Ninth and the Second on the requirements of the Open FOIA act, with respect to Exemption 3. So Exemption 3 says that an agency can withhold information, that it cannot be disclosed under federal law, but in another statute, where there's a withholding statute.
Congress changed that part of FOIA to say, moving forward, any withholding statute under Exemption 3 has to cite to Exemption 3 in the FOIA. And there's now a fight over whether or not that's unconstitutional as an entrenchment, that whether the Congress that passed the Open FOIA Act is somehow purporting to bind future congresses and whether that's permissible or not. So that's an issue that's -- Just two years ago, the split developed.
And then, right now, there's -- It's not really a split, but it's a hot topic. There's a petition before the Supreme Court that's going to conference on Friday, I think, for the first time in Behar v. Department of Homeland Security, and that case is about agency control. So record is undefined in FOIA. Agency record is defined.
What agency record means: The Supreme Court had a case that said it's a record, which, again is not defined itself, but a something that is either created and obtained by the agency and is under its control at the time a request for it is filed. Different circuits have approached what control means in different ways. D.C. Circuit has a whole bunch of -- three or four different tests.
The Behar case concerns records at the Secret Service held reflecting its involvement with the Trump presidential campaign and then the transition team, scheduling of meetings and its efforts to provide Secret Service protection to Candidate Trump and President-elect Trump. So that's a very -- I don't expect that petition to actually be granted, but the control issue is one that has been litigated quite a bit. And there's a lot of debate over whether these different control tests are correct or consistent with the Supreme Court's definition of agency control. And I'm happy to talk about FOIA reform in the discussion, but for the sake of time, I'll call it quits there.
Hon. Stephen Vaden: Yeah. Thank our panelists for that. If you've got a question, please line up, and we'll get to you. But I want to just posit at least a couple questions to our panel. Alina, I first want to bring out something explicitly for our audience that you alluded to. You noted with some very interesting statistics—that I noted a number of people in the audience were actually writing down—how many requests come in and how much it costs the government. Could you inform our audience how much Congress specifically appropriates every year to agencies to review and respond to FOIA requests?
Alina Semo: Did you set me up for that question? So there are 120 federal government agencies, 15 cabinet-level agencies currently with lots of sub-components that are subject to the Freedom of Information Act, with the exception of one, I believe: the Department of Interior. No one has a specific line item for their FOIA programs.
Hon. Stephen Vaden: So it's an unfunded mandate.
Alina Semo: It's an unfunded mandate in every FOIA program that we're aware of.
Hon. Stephen Vaden: Another question for everyone at the panel. Again, as Alina nicely set up, when FOIA was passed in the '60s, a document was a document. It was a piece of paper. Now it's something largely electronic, but not only is it electronic. For better or worse, we live on our phones.
And I've got two phones in front of me. One of them is my government phone from the judiciary—I had the same thing when I was at USDA—and the other one's my personal phone. And the way it's supposed to work is, if I'm having a work-related conversation, I'm supposed to use my government phone, including if I wish to send someone a text message, so that it can be captured. And if I'm calling my brother, I use my personal phone.
Surprisingly, I know, it doesn't always work that way. And now we have applications like Signal, WhatsApp, even the basic Snapchat that make things disappear. How concerned are you that an increasing amount of government business is not being collected in FOIA-able content, either intentionally or inadvertently, thanks to the advance of technology, and what do you see, if anything, the current statute has as a remedy for you? I open that up to the panel.
Katie Townsend: I can jump in just to mention a case that Gary flagged earlier, and that's the CEI v. OSTP case. I argued for amici in that case, so I'm really familiar with it. It involves a request for emails from the head of OSTP that -- so government emails, government work emails. I think there was -- There was really no dispute that there were communications, the substance of which were related to his position at OSTP, that were on a private email account.
And the requester, CEI, argued that those were agency records and that FOIA breached those, even though they were in his private email account, not on his government email account, and therefore couldn't be obtained by the agency from running a search on its own systems.
That decision, actually, it turned on control -- It turned less on control than I think some of us thought that it might, the definition of control in terms of the agency's control over the material. Effectively what the Court held was, "Well, he's the head of the agency. You can ask him to take those records and comply with the records requirements of basically forwarding those emails into his government email account or otherwise running a search on his private account and providing those emails."
Now, that was a good outcome for that one case, but that's really difficult to, I think, operationalize. And it does create real concerns that, especially if you're not talking about someone who's the head of an agency who is using a private email account or a private email server or something along those lines, if you're talking about someone who's at a lower level --
Hon. Stephen Vaden: How would you know?
Katie Townsend: -- how would you even know that those records were there? And in the case of CEI v. OSTP, CEI had records that were turned over in the production that were copying this other email address. So they knew that other email address was there. And I will say, in my own personal practice—and, Ryan, you could speak to this as well.—we've had cases where, both at the state level and federal level, we've gone after emails, text messages, things that are maintained on -- usually it's private email accounts.
We've only been able to do that successfully in cases where we know because we have another record that we can point to and say, "What is this Gmail email address here" where we know those email addresses are being utilized. I hate to say it, but I'm almost certain that there are records that are being lost to the FOIA process.
Hon. Stephen Vaden: And I think you draw an important distinction because it's important for the audience to remember FOIA does not require the creation of a document. It doesn't require the agency to put anything down on paper or recordable format. It just says that, if you do and it is involved in official government work, it's discoverable by the public for request.
So, in other words, if someone sends you an email and asks you a question and you work for the government, and you decide to answer that question by picking up your phone and having a conversation with them, that does not create a document. No one can FOIA your phone call. They can't, absent extraordinary circumstances, depose you and ask you what your answer was.0 If, on the other hand, you respond by typing it into email, you've created a document which is then subject to the Freedom of Information Act.
Ryan Mulvey: Yeah, the problem with personal email as far as FOIA is concerned, I think, as Katie was saying, is the difficulty in a FOIA case of getting the agency to do the search of the personal device. Unless you have that evidence of an agency official having used a personal device or a personal account, it's very hard to do—again, to go back to my extension of personal knowledge—because a FOIA officer can say, "We have a policy not to use it. My understanding is Mr. X always abides this policy and forwards." And the court then just accepts that unless you have evidence of bad faith.
I would just note that, for me, that's the bigger concern under FOIA because FOIA is the disclosure statute. It's not a records management statute. So how we make sure we're properly preserving all of these records that are on personal devices ends up being a Federal Records Act question.
Now, a federal record, the definition is not as extensive as an agency record. so more stuff you can get under FOIA if the agency has it when you ask for it. So there's a little bit of difference there. But even the personal thing aside, I just want to make sure to note that, to quote Jason Baron -- Did he precede you as director of litigation at NARA?
Alina Semo: Yeah, he did.
Ryan Mulvey: Yeah. He's a professor at University of Maryland and a member of the FOIA Advisory Council. He created, or was one of the minds behind NARA's Capstone approach, which you might have heard about, which is a -- I don't know how to best describe it. It's a way of approaching the preservation and accession of electronic records for the future.
There is so much—set aside personal accounts—electronic stuff out there: text messages, emails, chats. It's going to be a big problem. It's already starting to be a problem, but the future of FOIA, how agencies deal with gigabytes and -- What's bigger than it? Terabytes? I don't even know how big you go. There is so much out there, and FOIA has to be updated to deal with that in the = future.
Hon. Stephen Vaden: We have an audience question.
Steve Klein: Thank you very much. Fantastic panel. My name is Steve Klein. I'm a local practitioner, but also an amateur historian. And I do want to compliment Ms. Semo particularly. I know NARA broadly -- Great experiences with Riverside Denver, quick requests. When I think of FOIA in the context of National Archives, the Archives have a whole lot of online indexes. It's often an email, "Hey, I'm looking for this in a folder." And then I've always considered FOIA really a special access provisions, looking at certain documents, FBI stuff that they've turned over to NARA.
I'm curious. You know, as a lawyer, I probably should know this, but I don't. Anytime I drop an email asking for a document that National Archive already has in an index, is that considered a FOIA request?
Alina Semo: Not necessarily. It depends on how you phrase it. But if you're asking for records that have already been accession to the National Archives and Records Administration, you can get access to that through a non-FOIA route by just making that access request. You know, I don't want to recommend one way or the other. You could certainly try both.
There is a special access in FOIA office within the National Archives that handles special requests for access through FOIA, so it does happen. I will tell you the archives actually has pretty steep fees that they charge, which I think a lot of requesters are a little taken aback by.
Steve Klein: Yeah, 80 cents a page is a lot.
Alina Semo: They're statutory, and so that's a disincentive, I suppose you could argue. And just asking as a researcher, "I want access to this record. Please help me out" might be the better way to go. Also, I should just add NARA also accepts FOIA requests for operational records, the records that are created by its employees as they do business, and there are a number of requests that are pending for those records.
Hon. Stephen Vaden: Another question in the back.
Coach Weinhaus: I'm Coach Weinhaus from UCLA and Yeshiva University. My question: I'm trying to rectify three things that I think we heard several times. I think Katie mentioned that journalists now favor the idea of going to court as a means of getting records as a practical step, Alina had mentioned a federal spend of about $40 million on attorneys' fees, and I think everyone mentioned the idea that requests aren't really hit in the 20-day deadline.
And that would suggest to me that, with somewhere between 800,000 and a million FOIA requests, $40 million in legal fees is an incredibly small number for the federal government to be spending. Is that how much the government is spending on internal attorneys, external attorneys, or for fee-shifting awards by federal courts? And then the follow-up would be, when are fee-shifting awards -- You know, how much are those, if that's not that number?
Alina Semo: I can just kick things off and say one thing that we really need to point out is that, despite the fact that we have over 900,000 FOIA requests that have been filed in this past year, very few of them actually go into litigation. I think we usually say 1 to 3 percent of FOIA requests are actually litigated. It's a very small amount.
Now, of course, that's where we get our great case law for FOIA, and it gives us lots of guidance in terms of what the circuits are saying, but it's important to keep that in mind. The figure I dropped on everyone today came from foia.gov, so I invite everyone to go there. I don't know exactly what the components are, but certainly attorneys' fees are probably a large part of that. But I certainly would like the other panelists to comment.
Katie Townsend: I don't know, either, because I don't know where that statistic came from. I would be shocked if that was the amount that the government paid out in attorneys' fees to requesters who prevailed in litigation. That just doesn't seem right to me. I would guess, if I had to guess, that that number probably includes the U.S. attorneys, the salaries of the U.S. attorneys --
Hon. Stephen Vaden: DOJ man hours.
Katie Townsend: -- who litigate these cases because that's what happens when an agency is brought into litigation. It's typically not handled, although I think sometimes it is, but it's not handled by attorneys within that agency. It's usually handled by U.S. attorneys in the Department of Justice.
You know, I will say that, even though it is a small percent, I think, of requests that end up in litigation, I think it's also important to see where a lot of requests come from. So, as Alina mentioned earlier, a lot of requests are commercial requester requests. A lot of requests to DHS, for example, are for immigration records. That's a huge number. People may not be familiar with that, but if you're an immigration proceedings, you need to request your records through FOIA.
Hon. Stephen Vaden: Because there's no discovery in the administrative proceeding.
Katie Townsend: That's right. That's exactly right. So you need to request those through FOIA, and that is a huge number of requests on a yearly basis. I wouldn't be surprised if that's why DHS is consistently at the top of the list of agencies that are recipients of FOIA requests.
Hon. Stephen Vaden: Half their processing queue is A files. Yeah.
Katie Townsend: It's a huge amount. And so I think that, when you take that into consideration, I will say from the perspective of the sorts of clients that I work with, which are journalists and news organizations, and we litigate some of our own FOIA requests at the Reporters Committee, those folks are suing much more frequently.
And even though I think you're right—it makes up a smaller percentage of the overall whole—it is a significant, I would say, uptick. And there's a great resource, by the way. It's called TRAC at Syracuse University. They submit FOIA reports -- or they create these FOIA reports that show the amounts of FOIA litigation on a monthly basis and yearly basis. And you can really see, it's been kind of steady, I would say, over the last couple of presidential administrations, but I would say, 10 years ago, you really saw a leap in FOIA litigation. But it's also because of the use of FOIA, greater use of FOIA. I think we are seeing more requests as well.
Ryan Mulvey: I would just add that, in terms of FOIA litigation statistics, one thing to keep in mind is I think it's safe to say—and I don't have the data right in front of me—very few FOIA lawsuits go anywhere, meaning they don't make it to summary judgment. There's a lawsuit filed. The court says, "All right. Figure it out."
And then, once the requester gets the records, the suit is voluntarily dismissed. I don't know how much time, on average, would be expended by an AUSA in a case like that, but compared to the other cases they have on their plate, it's very small.
Hon. Stephen Vaden: I want to close on this because it's important. I know it factored into decisions on cases when I was an agency general counsel: the fee-shifting provision where certain requesters, if they are forced to file in court, can get their attorneys' fees paid. That can add up potentially to a significant sum, six-figure sum, usually, if it's a sophisticated requester with a long request.
Have any of you -- For our three attorneys who litigate this, have your clients been able to successfully invoke that, and how often do you find, when you litigate, that you can get the agency to pay for at least some of your attorneys' fees?
Katie Townsend: So in our cases -- So we do all of our work at the Reporters Committee pro bono, so we recover attorneys' fees to the extent we're able to in fee recovery matters. We have been able to successfully invoke FOIA's fee provisions, but I will tell you that we typically settle those.
So in other words, if we prevail in the litigation or substantially prevail in the litigation, we don't want to brief it. You can get fees on fees if you brief it, but the reality is, I think it's easier and better for everybody if we can just reach an agreement on fees, particularly if it's pretty clear cut, and so we will try that first before we brief it.
There are times when we file the motion for attorneys' fees. We've even filed the motion for attorneys' fees, argued it before the district court, and then the government said "Okay, well, now we want to talk about settlement." And we've been able to reach agreement on that.
I think, from our perspective as a as a nonprofit organization, yes, we want to recover the value of our time, but also, we don't want to spend a lot of time briefing fees unless we think we can make an impact on that legal issue as well. But I will say that the fee recovery in FOIA matters, it varies. We did in the AP case that I mentioned earlier.
That went up to the D.C. Circuit twice. And we won in the D.C. Circuit twice, and we recovered, I think, through settlement, about $150,000 worth of fees. For that amount of work over that period of time, it kind of isn't that much. I think for private attorneys, you're using actual billable rates. We're using -- I don't want to get into that. That's a whole separate discussion about what matrix to be using and all of that, but it's a little bit different. And so we do definitely try to take advantage of that fee recovery provision when we can and when it's appropriate.
Hon. Stephen Vaden: Gary?
Gary Lawkowski: I was going to say, I think it depends what you're defining as successfully litigating that issue. If it's in a settlement, I think that happens fairly frequently. I would say go to a contested motion and prevail on that. I don't know that there are as many contested motions on that. And, yeah, I think a couple of the issues that we're seeing arise are, one, as you mentioned, what matrix is appropriate.
For years, they were using the Laffey matrix. They tried to switch to a U.S. attorney's matrix; D.C. Circuit said no. They tried again, and now they're using something they're calling the Fitzpatrick's matrix. I think there's been one district court case on that, but there's not been a whole lot of litigation on if that's the appropriate one or not. That's another area to watch if you're watching litigation and watching the fees as where that goes.
And then it's also a question of what hours, and like you said, it tends to be a negotiation if it's going that way. So it's going to be, "All right. What hours are counting?" I think the average FOIA case is not going to recover anywhere near that type of six-figure thing. You see some of those -- I'm trying to remember what it was.
I've looked this up before, but I think the average is under 5000 in recovery for a FOIA case because most of them are, like you said, you filed the lawsuit, you have a couple of status reports that go through, the agency says, "Okay, here you go." Maybe you negotiate a little bit back and forth on the scope of the search. And then, by the time you're done, you're looking at a recovery, it's usually under 5000 for that type of very simple case.
Now, again, if you have one of those more complex ones that go up to the D.C. Circuit, down, up, down, that can get a lot higher very quickly. And if you have a case with a contested motion, that goes a lot higher, but even if you have one that goes on for years and years, if there's never a contested motion, it's probably not going to get as high as even a short one with a detailed summary briefing schedule.
Ryan Mulvey: I know we're over, but just real quick, something unique with FOIA is, not only do you have to show that you're entitled to win fees so that you've substantially prevailed -- I'm sorry -- that you're eligible by substantially prevailing, and there's fights over that. You have to show that you're entitled.
So just the fact that you win doesn't mean you recover. You have to show that what you've gotten from the agency as a result of winning has, for example, advanced the public interest. So just the fact that you've won doesn't mean anything. My personal view is that concerns about the effects of the fee-shifting provisions in FOIA, particularly as far as public interest groups are concerned—and that's been something that's been coming up in dicta especially in the DDC in FOIA cases—is overstated.
Hon. Stephen Vaden: All right. Well, if you'll thank our panelists, we are concluded.