Monday, April 24, 2017

Adam Marshall - Reporter's Committee for Freedom of the Press

Adam Marshall of the Reporter's Committee for the Freedom of the Press gave a Panel 2 presentation at the CAPA Sunshine Week Press Conference on March 16 at the National Press Club in Washington.

Adam Marshall: Good afternoon, my name is Adam Marshall, I'm an attorney at the Reporter's Committee for Freedom of the Press. Among other things, I participate in federal FOIA litigation and state public records litigation. That's about all I do. For those of you that are unaware that the Reporter's Committee is a non-profit based here, in Washington D.C., we primarily assist reporters and news organizations and all kinds of legal issues regarding the collection and dissemination of the news. My part in our organization's responsibilities is, like I said, is getting reported information from the government.

            So I thought what I would tell you about, a little bit, because it is sunshine week, is the state of FOIA, which I'm sure you all already know, and also to talk a little bit about the recent amendments to FOIA that were brought in the 2016 updates. Then, finally to look forward a little bit in terms of what needs to be fixed with FOIA, so that we can get access to even more records.

            The state of FOIA, for all of you who use it, as I said before, you know is really terrible, the previous administration set records for denying access to more records than ever before. The 2016 numbers from the department of justice came out, and it's clear that nothing is really improving. The government set a new record, I believe this year, for responding that they could not find records responsive to requests. And this is coming from an administration that had a pretty avowed commitment to opening this, and still this is what we got.

            Jeff Sessions who is the new attorney general, not a fan of FOIA, he acted to hold up the 2016 amendments, he has not issued a memo yet on FOIA, as previous attorneys generals have. There may be a couple reasons for that, one is that there are just other things going on, and the other is that ... Part of what the 2016 amendments did is codify a back and forth that had gone on between Democratic and Republican administrations of the past, in terms of what types of lawsuits they would defend. I'll get to that in a second. One of the other interesting pieces of information that came out just recently from the Department of Justice is that last year, the Obama administration spent 36,000,000 million dollars defending FOIA lawsuits. Which is just an incredible amount of money. You can imagine that if they spent a little bit of that perhaps, towards records management or towards getting more FOIA officers, the public might be better served. Instead we have 36,000,000 million dollars defending against the public's right of access.

            So, we've already talked a little bit, and they talked a little bit, about the 2016 amendments to FOIA, the work that they've done to increase access to historical records, specifically records older than 25 years old. The FOIA amendments did a lot of other interesting things. One is that they codified the foreseeable harm standard. From now on, under FOIA, it's not enough that a record merely technically fall within the scope of an exemption. The government in this has also described how release of the record would cause harm, they reasonable foresee the release of the record would cause harm, identified by the exception.

            So a record is classified, or a law enforcement record, it's not just enough that, yes, it technically meets the scope of the exemption that is outlined in the case law today. The government now, has to take an additional step of explaining why disclosure would result in harm. There are other nice amendments with respect to administrative appeals, you now have a longer time to do that. OGIS was also strengthened for those who don't want to go to court always, because it's expensive and time consuming. OGIS now has some more independence. OGIS is the Office of Governmental Information Services, it's located within the National Archives. And they can be a really great, I think, resource for people, who just want some basic help and are getting stonewalled by agencies.

            Those improvements are nice, but there is, I think, still more work to be done. I think it's pretty clear ... We've seen that the executive branch is not interested in voluntarily increasing transparency, that they have to be dragged kicking and screaming by the legislative branch and that usually happens about once every ten years. We have in 2016 there were amendments in 2008 there were amendments, before that, in '97 or '98 there were amendments, then '86 before that. I think it would be great if we had more frequent amendments to FOIA than once a decade, because there are so many important things out there. I think in particular, we need to seriously consider reform of the law enforcement exemption. That's exemption seven. Exemption seven has gotten to such a place now, that if there is anything remotely touching on a law enforcement activity, the government pretty much routinely with holds it as a matter of course. The courts have adopted a pretty expansive interpretation of that exemption.

            It's really frustrating, any attempts to get access to anything by DOJ or other law enforcement agencies. It's made so that, I think, also there's a lot of room to reform classification, and the way that it interacts with exemption one.

            It's unclear to what extent to foreseeable harm standard is going to interact with classification and exemption one. My guess is that it probably won't have a whole lot of impact, because judges are pretty differential when it comes to agency assertions that information will be damaging if it's released already, but you never know. I think there's room for development in the case law there. 50 years on, I think that FOIA remains a really important tool, one of the primary tools that reporters use for getting information from the government. I love it, I think that it's a messy field, but not something that we should shy away from.

            I'm happy to take any questions, as long as you need, about the specifics of FOIA, the nuts and bolts and we can get into that.

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