Policy and News Update for October 16, 2012

In This Issue:
News from Coalition Partners & Others
I. House Passes Whistleblower Protection Enhancement Act
II. Requesting Records through FOIAonline: Early Observations

News from Coalition Partners & Others

Partners File Briefs in Supreme Court Case on State Freedom of Information Laws

On October 5th, the Supreme Court agreed to review the Virginia freedom of information law that limits access to state documents to Virginia residents. Led by Citizens for Responsibility and Ethics and Washington (CREW), the Center for Media and Democracy (CMD), Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), National Freedom of Information Coalition (NFOIC), the Project On Government Oversight (POGO), the Sunlight Foundation, the Washington Coalition for Open Government (WCOG), the Virginia Coalition for Open Government (VCOG), Tennessee Coalition for Open Government (TCOG), and OpenTheGovernment.org filed an amicus brief for McBurney v. Young in support of the petitioners. The American Society of News Editors (ASNE) and Muckrock joined in a separate friend-of-the-court brief illustrating how laws like Virginia’s obstruct reporting.

Coalition Partners Address Privacy Concerns in FCC Broadband Tests

The Liberty Coalition, joined by the Center for Media and Democracy and OpenTheGovernment.org, sent a letter to the Federal Communications Commission urging the FCC to evaluate the privacy implications of its broadband testing program. The ten groups also recommended that the FCC regularly disclose how personal information is retained, used, and shared.

Reporters Committee to Hold Federal FOI Webinar

On October 25th at 2pm, the Reporters Committee for Freedom of the Press will present the free webinar “Navigating Federal FOIA.” RCFP FOI Director Mark Caramanica and FOI Fellow Aaron Mackey will discuss the FOIA process and using the organization’s new Federal FOIA Appeals guide.

OMB Watch Mobilizes for Water Quality Information

OMB Watch is fighting a proposal that would weaken the reporting requirement that water companies directly report on the purity water they supply to households. The proposal under consideration at the Environmental Protection Agency would remove the responsibility to mail water quality reports to each household and provide the reports online. You can tell the EPA to preserve the mailings through OMB Watch.

I. House Passes Whistleblower Protection Enhancement Act

Before all members of the House left DC on September 28, they unanimously passed an amended version of S. 743, the Whistleblower Protection Enhancement Act during a pro-forma session. The new version of the bill needs to be approved by the Senate before it is ready to be signed into law.

The latest version of S.743 closes important loopholes that have left federal employees who blow the whistle on government waste, fraud, abuse, and illegality vulnerable to retaliation, and upgrades protections. However, the bill does not include several high-priority improvements that whistleblower advocates have fought for years to put in place. Provisions that would have granted federal whistleblowers access to jury trials, expanded protections for classified disclosures to Congress, and added new protections for the national security and intelligence community were stripped from the bill in the interest of creating a non-controversial bill that could be passed before the end of the 112th Congress.

Strong whistleblower protections are crucial to creating a more accountable government. We look forward to continuing to support our allies on the Hill and whistleblower advocates in our partner organizations, notably the Government Accountability Project – GAP and the Project On Government Oversight – POGO, in their efforts.

II. Requesting Records through FOIAonline: Early Observations

Last week OpenTheGovernment.org launched a project to compare the experience of requesting government records using FOIAonline, a recently launched website that allows users who sign up for an account to easily make and track Freedom of Information Act (FOIA) requests at participating agencies, with other agencies' FOIA systems. (Learn more about FOIAonline and which agencies are participating by checking out our infographic).

We started our project by selecting a type of record we reasonably expect all agencies to have in their possession. We chose to request copies of the report agencies were required to submit to the Archivist and the Director of the Office of Management and Budget (OMB) pursuant to the Presidential Memorandum on Records Management. We know that a lot of the material in these reports is likely to be exempt under FOIA because it is pre-decisional information (exemption 5), but we thought there might be some interesting differences in how agencies used this discretionary exemption. We made three requests using FOIAonline (at the Environmental Protection Agency (EPA), Merit Service Protection Board (MSPB), and the Department of Commerce). We also made FOIA requests using either the agency's online submission form or via email to the 14 agencies that received the highest number of requests in 2011 (the Departments of Homeland Security, Defense, Health and Human Services, Justice, Veterans Affairs, Agriculture, Labor, Treasury, State, and Transportation, the Social Security Administration, the Equal Employment Opportunity Commission, the Securities Exchange Commission, and the National Records and Archives Administration (NARA's Office of General Counsel participates in FOIAOnline, other components still use the old system).

We are early into the project, but it is already clear that FOIAonline makes it considerably less hard to manage multiple requests. Logging into our FOIAonline account we see an easy-to-read, sortable chart showing the tracking number of each request, whether or not it has been assigned to the "simple" or "complex" track, the expected due date, and more. As the agency handles the request and new information becomes available, the information automatically populates the chart.

We created a similar spreadsheet to manage our other requests, but the complexity in how each agency handles the request makes it difficult to maintain. For example:

  • Tracking numbers are assigned in a variety of ways: some agencies send an automatically generated email with the number, some email the tracking number in a letter (pdf) from the FOIA processor, one agency– HHS– sends requesters postcards that have been addressed and filled out by hand.
  • We still have not received tracking numbers for about half of our requests.
  • Each agency has a different tracking system. Some are online, some are telephone-based. To find out the kind of status information that is automatically generated on FOIAonline for each of our other requests would be very time consuming.

We have also already discovered that some agencies do not accept appeals online; they must be mailed back to the agency. We have not yet had to file an appeal on FOIAonline, but have been told it can be handled online.

Be sure to check out the blog to keep up with the project. As a side note, we should mention that an agency using FOIAonline was not the first to respond to our request though: that honor goes to NARA, which granted our request for a fee waiver and withheld the document in its entirety (under FOIA Exemption 5 – information that concerns communications within or between agencies).

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