Federal FOIA appeals guide for private investigators and journalists.

Every private investigator/journalist who requests records from the federal government through the Freedom of Information Act should be familiar with its administrative appeals process. Unfortunately, for various reasons, federal agencies at times fail to adhere to FOIA’s disclosure requirements. When this occurs, journalists are not without recourse. They can appeal adverse decisions to higher authorities within an agency and often must in order to enforce their rights. 

The Federal Freedom of Information Act Appeals Guide is intended to help people successfully draft appeal letters to federal administrative agencies when they receive an unfavorable decision related to a federal FOIA request. This guide builds off and supplements our Federal Open Government Guide. Among other things, the Federal Open Government Guide provides information detailing citizens’ rights under federal FOIA, how to file a FOIA request and presents a condensed discussion about FOIA exemptions and appeal options.

In contrast, this guide is intended to provide private investigators & journalists with a fairly in-depth understanding of the large body of law that has developed related to the federal FOIA (primarily through federal judicial decisions that have interpreted the FOIA) while at the same time remaining accessible to the non-lawyer. It is designed so journalists can engage in effective self-help at the administrative appeals stage, crafting informed appeal letters when they feel they are being unlawfully denied access to records or are being denied procedural rights to, for example, fee waivers or expedited processing.

Please remember that every situation is unique and that this guide is not intended nor should it be construed as giving specific legal advice to you. Rather, it provides a discussion of the law in general terms to better educate journalists on how federal FOIA law has been interpreted and operates. Also, it is not intended to be a guide on how to file a FOIA lawsuit as that is a distinct process from filing an administrative appeal with an agency.
 http://www.rcfp.org/federal-foia-appeals-guide
Obama administration struggles to live up to its transparency promise.

In its first year, the Obama administration vowed an increase in transparency across government, including through the Freedom of Information Act, the proactive release of documents and the establishment of an agency to declassify more than 370 million pages of archived material.

Three years later, new evidence suggests that administration officials have struggled to overturn the long-standing culture of secrecy in Washington. Some of these high-profile transparency measures have stalled, and by some measures the government is keeping more secrets than before.

Media organizations and individuals requesting information under the FOIA last year were less likely to receive the material than in 2010 at 10 of the 15 Cabinet-level departments, according to a Washington Post analysis of annual reports of government agencies.

The federal government was more likely last year than in 2010 to use the act’s exemptions to refuse information. And the government overall had a bigger backlog of requests at the end of 2011 than at the start, largely because of 30,000 more pending requests to the Department of Homeland Security.

In 2010, response rates to FOIA requests increased and the use of exemptions to refuse requests fell. Federal departments also reduced the backlog of pending requests.

Since then, the Post analysis shows, progress has stalled and, in the case of most departments, reversed in direction. The analysis showed that the number of requests denied in full due to exemptions rose more than 10 percent in 2011, to 25,636 from 22,834 the previous year.

Similarly, the pledge to declassify archived material has run into major delays. The National Declassification Center (NDC) was established by the president in December 2009 to review and declassify 371 million pages of material by December 2013.

In its progress report issued last month, the center said it had completed the review process for 51.1 million pages, less than 14 percent of the total. Of that number, 41.8 million pages were made available to researchers and the public.
http://www.washingtonpost.com/world/national-security/obama-administration-struggles-to-live-up-to-its-transparency-promise-post-analysis-shows/2012/08/03/71172462-dcae-11e1-9974-5c975ae4810f_story.html

Washington’s war on leaks, explained:

Accusations continue to fly from lawmakers and presidential hopeful Mitt Romney that the Obama administration has leaked national security information for political gain. Leaks, of course, are nothing new in Washington, but now the Senate has jumped into the fray, with a new proposal to tighten control over the flow of information between intelligence agencies and the press.

On Monday, the Senate Select Committee on Intelligence filed new anti-leak legislation. The bill wouldn’t amend the Espionage Act, or make any blanket criminal penalty for leaks. But it does include several provisions that could stymie reporting on national security.

One provision would require intelligence employees to report all contact with the media. This goes farther than most existing policies; a standard intelligence polygraph question asks whether employees have leaked classified information, but not about any media contact. The measure also doesn’t define “media,” or “contact”—does a blogger, or think tank count?

Prospects for the anti-leak provisions aren’t clear. Previous attempts to pass anti-leak legislation over the past decade have failed, usually faltering on concerns about whistleblower protections and press freedom. Senator Dianne Feinstein, D-Calif., who chairs the intelligence committee and helped author the proposed measures, told Politico that she would be open to revising the bill.

Other language in the bill states that only a director, deputy director, or designated public affairs staff of an intelligence agency “may provide background or off-the-record information on intelligence activities” to the media. As the Washington Post noted, that would make standard background intelligence briefings on unclassified information by CIA and other analysts illegal. (Intelligence employees could still give authorized, on-the-record interviews, but those, of course, are rare because those employees usually need to protect their identities).

Tom Devine, legal director for the Government Accountability Project, said that those two provisions amounted to “a gag order on unclassified information,” which could violate whistleblower and free speech protections.

The proposals for tighter control over classified information come at a time when members of Congress have complained about the administration’s lack of transparency on several classified programs—in particular, the CIA’s drone program and the targeted killing of terror suspects—which they say has hampered Congress’ oversight role.

Since 9/11, the amount of information classified and the number of people with security clearance has ballooned, to more than 4.8 million people. This has led some to question whether “classified” always describes truly sensitive national security information. Leslie, of the Reporters Committee for Freedom of the Press, described it as “an old steam boiler — the answer is not always to patch the leaks but to relieve the pressure. Imposing so much secrecy means people are more likely to leak.”
http://www.propublica.org/article/washingtons-war-on-leaks-continues-cracking-down-on-press