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Justice Dept annual FOIA summary report miscalculates FOIA release rate

Unredacted, the National Security Archive’s blog, analyzed the latest annual agency FOIA report from the Department of Justice’s Office of Information Policy (OIP), and found that the report over calculated and misrepresented the government’s release rate of FOIA requests. The FY2019 summary report said that agencies had achieved a government-wide release rate of 94.4% (up from 93.8% last year), but the Natl Security Archive’s analysis and math — when taking into account things like counting nearly entirely redacted documents as successful partial releases, and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons” — showed that a more accurate release rate calculated by the Archive and others “hovers between 50 and 60 percent.”

That’s not good. OIP and agencies across the federal government MUST do better, must conduct more efficient searches, must find more ways to proactively post documents online etc. The 2018-2020 FOIA Advisory Committee to the National Archives (of which I’m a member) has some very good recommendations in their draft report for making FOIA better. This is the peoples’ information. While there are legitimate reasons for limiting access to *some* information (see the 9 FOIA exemptions), agencies have to stop using bureaucratic impediments to block, deter, and obfuscate the public’s right to know what their government is doing in their name.

The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent.

Other highlights from the report include:

  • The government received 858,952 FOIA requests in FY 2019, down slightly from FY2018’s all-time high of 863,729 requests.
  • Exemption 7(c) and 7(e) account for more than 50% of all exemptions applied to denied records or portions of records.
  • Backlogged requests have decreased from 130,718 in FY2018 to 120,436 in FY2019.
    • As a reminder, in 2008 President Obama instructed every agency to reduce its FOIA backlog by ten percent every year. As my dear former colleague Nate Jones notes in his article, FOIA: A Colossus Under Assault, only one agency did this – the Department of Health and Human Services.
  • Four agencies account for 65% of all referrals (and associated delays): DOD, DOJ, DHS, and CIA.
  • The appeals backlog continues to grow – up to 5,087.
    • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
  • Agencies reported collecting $2,547,638 in FOIA fees – totaling less than .5% of total FOIA costs. These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.
  • Agencies spent nearly $38,842,948 in FOIA litigation. Put another way, agencies lost 15x as much money fighting bad FOIA decisions in court as they collected in FOIA fees.

via OIP Report Misleadingly Touts a Government-Wide FOIA Release Rate of 94.4%, Continued Surveillance of Black Lives Matter, and More: FRINFORMSUM 6/4/2020 | UNREDACTED.

Appeals court rules DOJ must give sealed Mueller materials to Congress

Appeals court rules DOJ must give sealed Mueller materials to Congress By Harper Neidig – 03/10/20 12:27 PM EDT

“A federal appeals court in Washington ruled on Tuesday that the Department of Justice (DOJ) must hand over grand jury materials from former special counsel Robert Mueller’s investigation to Congress.”

“A three-judge panel on the D.C. Circuit Court of Appeals upheld a federal judge’s decision that the House’s impeachment inquiry justified its request for the sealed documents.”

‘”In short, it is the district court, not the Executive or the Department, that controls access to the grand jury materials at issue here,” Judge Judith Rogers wrote in an opinion for the panel’s 2-1 majority. “The Department has objected to disclosure of the redacted grand jury materials, but the Department has no interest in objecting to the release of these materials outside of the general purposes and policies of grand jury secrecy, which as discussed, do not outweigh the Committee’s compelling need for disclosure.”‘

The decision is at https://www.cadc.uscourts.gov/internet/opinions.nsf/E5DEA16F3BB4D8BD8525852700599D47/$file/19-5288-1832741.pdf

co-published on govdoc-l and freegovinfo.info.

to make available or not to make available that is the question

Over a year’s time I have contacted the Department of Justice webmaster four times about making two letters and two memos available officially.

The first inquiry pertained to the agency making Attorney General Barr’s letter available where he interpreted Special Counsel Mueller’s report as exonerating the President. They responded within 72 hours that they would.
letter: https://www.justice.gov/ag/page/file/1167086/download
Remarks: https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-release-report-investigation-russian

Shortly after, when Mueller released his letter responding to Barr’s characterization of the report and conclusions, I asked that they make it available. They never responded.

When the President wrote a memo that authorized Barr to declassify any information solely at his discretion, I asked that the Department make it available. The webmaster responded that the memo was the President’s and therefore they could not make it available. I had checked the Whitehouse’s and Department’s websites before inquiring to see if it was there. Soon after the webmaster’s response, I checked the Whitehouse website again, and the memo was there. Since then It has been removed but published in the Compilation of Presidential Documents. https://www.govinfo.gov/content/pkg/DCPD-201900335/pdf/DCPD-201900335.pdf

Three weeks ago when Barr issued his memo to all staff that conducting investigations pertaining to the election and politics during an election year needed to seek approval at the highest level.
Pierre Thomas, an ABC correspondent, interviewed Barr about the memo and other matters. https://abcnews.go.com/Politics/transcript-attorney-general-bill-barrs-exclusive-interview-abc/story?id=68975178. I asked the Department to make the memo available. I didn’t receive a response. I followed up a week later about my initial inquiry and still haven’t received a response.

co-published on govdoc-l and freegovinfo.info.

DOJ tests new data-gathering method to more accurately count deaths in police custody


In March of 2015, an official assessment of the Department of Justice statistical program that reports “arrest-related deaths” — a program that has been in place since 2003 — found that the program identified only between 59 and 69 percent of the estimated actual total of fatal interactions with police in 2011.

  • Arrest-Related Deaths Program Assessment: Technical Repor by Duren Banks, et al., RTI International, (NCJ 248543) March 2015.

    This variability in approach [to collection of data on deaths that occur during the process of arrest in the United States] has led to questions about whether these data collection methods were capable of capturing the universe of arrest-related deaths and law enforcement homicides in particular. BJS requested RTI International to conduct an assess ment of the ARD program.

A new program is being tested that would gather data from public sources such as online news. This crowdsourcing and fact-checking data-gathering is an attempt to redesign the existing DOJ program.

  • Number of Deaths in Police Custody Higher than Media Reports: DOJ Data, By Aliya Sternstein NextGov (January 14, 2016).

    This spring, Justice Department-funded data scientists will present findings from a pilot project that, in essence, crowdsources facts on police homicides. So far, the number of possible deaths during and after police pursuit is far higher than the figures tabulated by both journalists and activists appalled by the longtime paucity of data on excessive use-of-force.

    The project is part of a new project by the Bureau of Justice Statistics focused on capturing an official record of the whole “universe” of law enforcement homicides. The agency has assigned part of a new task to an artificial intelligence tool that crawls online news for the most relevant, potential cases of civilians dying during arrests. Soon, bureau data analysts will compare the reports to local agency records.

DOJ blocks executive branch from reading Senate Torture Report

This is very frustrating to read about this winding saga about the Senate Torture Study. According to Techdirt, the Department of Justice is insisting that nobody in the executive branch has read or will read the Senate Intelligence Committee’s torture study released last year. They seem to be saying that if they don’t read it, it isn’t FOIA’able(?!). And now the new chairman of Senate Intelligence Committee, Richard Burr, is demanding that executive agencies return their copies so that he can destroy them. Senators Feinstein and Leahey have written an angry WTF letter to Attorney General Loretta Lynch and FBI Director James Comey (below and attached) telling them to “disseminate the full and final Committee Study to appropriately cleared senior individuals in the Department of Justice and FBI, and instruct other appropriate federal departments to take the same position.” This report should NOT be buried and destroyed before the public can read it, and our government is held accountable for illegal and unconstitutional activities.

The DOJ has taken Burr’s lead and claimed that the report is a Congressional record, and that’s also why they insist that no one at the DOJ has opened it — to maintain that it has not become an executive branch record subject to FOIA. Not surprisingly, Senator Feinstein is pissed off about this — because her staffers spent years putting together this report, detailing massive abuses by the CIA and others in torturing people, and the whole point of it was to help the government learn how badly it messed up and to stop it from doing it again. But if no one reads it, then that won’t happen. And, the DOJ now says that not only has it not read it, it has instructed everyone in the exec branch not to read it for fear that reading it would make it subject to FOIA.