7 ms·

FOIA Improvement Act Signed into Law

104 points by rl3 10y ago

chipperyman573 10y ago
The article says there is now a 25 year limit on redacting, if I read it right. Obviously the DoD isn't going to play, so how are they getting around it? Is there a generic "security can trump this law"?
- deleted 10y ago
  [deleted]
- forgottenpass 10y ago
  The Act places a 25 year limit on the use of the deliberative process exemption Deliberative process is just one type of exemption and is entirely separate from the national security exemption. https://www.foia.gov/faq.html#exemptions https://www.foia.gov/faq.html#exemptions
  - SapphireSun 10y ago
    Geological information on wells? Everything else seemed very abstract and logical and then there's this one specific thing.
    - dahdum 10y ago
      Made me curious too, here's a law blog that explains why. https://smithblawg.blogspot.com/2014/04/why-wells-exploring-freedom-of.html https://smithblawg.blogspot.com/2014/04/why-wells-exploring-... "This category was added after witnesses testified that geological maps based on explorations by private oil companies were not covered by “trade secrets” provisions of present laws. Details of oil and gas findings must be filed with Federal agencies by companies which want to lease Government-owned land. Current regulations of the Bureau of Land Management prohibit disclosure of these details only if the disclosure “would be prejudicial to the Government” (43 CFR, pt. 2). Witnesses contended that disclosure of seismic reports and other exploratory findings of oil companies would give speculators an unfair advantage over the companies which spent millions of dollars in exploration."
    - Hitard 10y ago
      Ahhh, that must be about Mel's Hole. ;)
r00fus 10y ago
So it's another bill that has no funding to implement it (likely because of "budget hawks" who take any chance they can get to tighten government spending... well, at least government spending not benefitting their district/state directly). When will we get sane legislation back? Or are unfunded mandates the future of all such improvements?
- massysett 10y ago
  That's not the way the appropriations process works. Congress does not set aside money for FOIA or for this bill. Generally appropriations are made to each agency, and each agency must carry out its operations in a manner consistent with all laws, including FOIA.
  - r00fus 10y ago
    Are you saying legislators are forbidden from earmarking allocations for a specific executive branch agency for specific expansion of scope?
    - massysett 10y ago
      They could, and occasionally they do, but not for a small peanuts law like FOIA--and FOIA is peanuts in the overall scheme of federal programs.
- topspin 10y ago
  Yeah, those darn "budget hawks." They only let the feds borrow and spend $439,000,000,000 last year. That isn't even half a trillion! Just awful. If only we could chase off these budget hawks and borrow as many trillions as we need.
lettergram 10y ago
Having done a ridiculous number of FOIA requests myself[1], this isn't even the largest issue. The largest issue with FOIA requests is that we don't know what to request, and literally anyone can just make up a reason to deny them. Hell, even after stuff is released publicly, sometimes the government decides to label it secret. [1] http://austingwalters.com/foia-requesting-100-universities/ http://austingwalters.com/foia-requesting-100-universities/
- nhebb 10y ago
  The DoJ filed a motion on Wednesday to delay the release of the Clinton Foundation emails for 27 months. The reason cited was that there were errors in how the search was conducted. Given that, it sounds like there is also a fundamental problem in how information is stored and classified. The FOIA requests were for emails, so I would think that the retrieval would be simple. They must be vetting each email for sensitive (secret) information, otherwise I can't imagine how it would take 2.25 years to fulfill that request. I can't tell if this is a stonewalling effort or a technology shortfall in the FOIA process.
  - rhino369 10y ago
    I'm vetting FIOA-like request emails right now and yes each email is vetted for sensitive information. And not just secret info, there are a bunch of exemptions you have to watch out for. If anything the list of exemptions is too short. A lot of stuff that seems like it's private isn't exempted. It's incredibly time consuming and very very expensive. I'm working one person's emails from a 4 month span and we have ~dozen people working on it for a week. The more specific request the easier it is. The ones asking for "everything" are just hard as hell.
    - Zigurd 10y ago
      Cry me a river. It's hard only because there is too much utterly worthless, indeed counterproductive, secrecy. A more open government could not do some things. Good. It shouldn't.
kerkeslager 10y ago
This is an improvement, but ultimately we will not have an open government until the following conditions are met: 1. Openness must be the default, assumed state. When our founding fathers addressed the problem of unfair imprisonment, they didn't do so by giving people tools to prove their innocence. Instead, they started from the assumption of innocence, putting the burden of proving guilt on the prosecution. An open government will not be achieved by giving people tools to open the government. Instead we should start from the assumption of openness, publishing everything by default, and place the burden of proving a need for secrecy on members of our government. One example of why this is necessary is that we don't even know what to request; FOIA powers are only useful for opening up known unknowns. 2. Openness must be checked and balanced. Who watches the watchmen? Right now, no one. The honor system doesn't work here: members of government often have strong incentives to hide information from the public, and these are often the instances where openness is most important. Yet members of government can deny FOIA requests for all sorts of reasons, and requesters have little recourse. Without an impartial third party to assess whether secrecy is needed, members of government can simply claim anything needs secrecy, and there is no one to investigate whether this is actually true. One example of why this is necessary is the content of the Snowden leaks: the NSA, operating in secrecy with no oversight, has denied requests for information which we now know only because Snowden blew the whistle. 3. Openness must be a technical requirement. In order for openness to be the default, we need to change the way the government stores and distributes information. Software projects recognize this need for their projects, which is why systems like Git store every action. The technical requirements as I see them are: a) Accessibility Often members of government obstruct FOIA requests by distributing large amounts of data in unusable formats such as PDF. Distribution in a format which can be searched and analyzed is a necessity. b) Reliability There have been a few high-profile cases recently where data has been "lost" in hard drive crashes, accidental deletions, etc. We have no way of knowing whether these data losses were the result of actual technical problems or foul play. Data should be stored and backed up sufficiently that technical failure can't be used as plausible deniability for foul play. c) Distribution A recent FOIA request for Clinton Foundation emails has recently been delayed by 27 months. Whether this is stonewalling or technological failure is unknown but the effect is the same. If we started from the assumption of openness, the emails should easy to retrieve, and in fact should be published to an RSS feed or similar on a tight deadline. These technologies already exist; we should be applying them to government. 4. Openness must be incentivized. Currently, all the incentives are for members of government to obstruct openness. Wrongdoers obviously have incentives to hide their wrongdoing, but the problem goes deeper. Whistleblowers are ostracized when they aren't outright jailed. And there are no incentives that counteract these. Members of government delay requests, deny requests without justification, provide data in unusable formats, cover up wrongdoing, or even in some cases outright counterattack the person asking for information, and these members of government are never punished with more than slap on the wrist. In fact, they are often rewarded. We need to provide strong incentives for openness. Whistleblowers should have strong protections. Data should be released on a tight deadline and in a usable format with fines and firings for failure--even if there are technical reasons, because people unable to meet the openness requirements of their jobs should not hold those jobs. People who cover up wrongdoing in government should be prosecuted along with the wrongdoers (by an impartial third party, since checks and balances are needed). Any set of laws intended to promote openness will be ineffective if it doesn't have teeth.

104 points by rl3 10y ago

The article says there is now a 25 year limit on redacting, if I read it right. Obviously the DoD isn't going to play, so how are they getting around it? Is there a generic "security can trump this law"?

deleted 10y ago
[deleted]
forgottenpass 10y ago
The Act places a 25 year limit on the use of the deliberative process exemption Deliberative process is just one type of exemption and is entirely separate from the national security exemption. https://www.foia.gov/faq.html#exemptions https://www.foia.gov/faq.html#exemptions
- SapphireSun 10y ago
  Geological information on wells? Everything else seemed very abstract and logical and then there's this one specific thing.
  - dahdum 10y ago
    Made me curious too, here's a law blog that explains why. https://smithblawg.blogspot.com/2014/04/why-wells-exploring-freedom-of.html https://smithblawg.blogspot.com/2014/04/why-wells-exploring-... "This category was added after witnesses testified that geological maps based on explorations by private oil companies were not covered by “trade secrets” provisions of present laws. Details of oil and gas findings must be filed with Federal agencies by companies which want to lease Government-owned land. Current regulations of the Bureau of Land Management prohibit disclosure of these details only if the disclosure “would be prejudicial to the Government” (43 CFR, pt. 2). Witnesses contended that disclosure of seismic reports and other exploratory findings of oil companies would give speculators an unfair advantage over the companies which spent millions of dollars in exploration."
  - Hitard 10y ago
    Ahhh, that must be about Mel's Hole. ;)

r00fus 10y ago

So it's another bill that has no funding to implement it (likely because of "budget hawks" who take any chance they can get to tighten government spending... well, at least government spending not benefitting their district/state directly). When will we get sane legislation back? Or are unfunded mandates the future of all such improvements?

massysett 10y ago
That's not the way the appropriations process works. Congress does not set aside money for FOIA or for this bill. Generally appropriations are made to each agency, and each agency must carry out its operations in a manner consistent with all laws, including FOIA.
- r00fus 10y ago
  Are you saying legislators are forbidden from earmarking allocations for a specific executive branch agency for specific expansion of scope?
  - massysett 10y ago
    They could, and occasionally they do, but not for a small peanuts law like FOIA--and FOIA is peanuts in the overall scheme of federal programs.
topspin 10y ago
Yeah, those darn "budget hawks." They only let the feds borrow and spend $439,000,000,000 last year. That isn't even half a trillion! Just awful. If only we could chase off these budget hawks and borrow as many trillions as we need.

lettergram 10y ago

Having done a ridiculous number of FOIA requests myself[1], this isn't even the largest issue. The largest issue with FOIA requests is that we don't know what to request, and literally anyone can just make up a reason to deny them. Hell, even after stuff is released publicly, sometimes the government decides to label it secret. [1] http://austingwalters.com/foia-requesting-100-universities/ http://austingwalters.com/foia-requesting-100-universities/

nhebb 10y ago
The DoJ filed a motion on Wednesday to delay the release of the Clinton Foundation emails for 27 months. The reason cited was that there were errors in how the search was conducted. Given that, it sounds like there is also a fundamental problem in how information is stored and classified. The FOIA requests were for emails, so I would think that the retrieval would be simple. They must be vetting each email for sensitive (secret) information, otherwise I can't imagine how it would take 2.25 years to fulfill that request. I can't tell if this is a stonewalling effort or a technology shortfall in the FOIA process.
- rhino369 10y ago
  I'm vetting FIOA-like request emails right now and yes each email is vetted for sensitive information. And not just secret info, there are a bunch of exemptions you have to watch out for. If anything the list of exemptions is too short. A lot of stuff that seems like it's private isn't exempted. It's incredibly time consuming and very very expensive. I'm working one person's emails from a 4 month span and we have ~dozen people working on it for a week. The more specific request the easier it is. The ones asking for "everything" are just hard as hell.
  - Zigurd 10y ago
    Cry me a river. It's hard only because there is too much utterly worthless, indeed counterproductive, secrecy. A more open government could not do some things. Good. It shouldn't.

kerkeslager 10y ago

This is an improvement, but ultimately we will not have an open government until the following conditions are met: 1. Openness must be the default, assumed state. When our founding fathers addressed the problem of unfair imprisonment, they didn't do so by giving people tools to prove their innocence. Instead, they started from the assumption of innocence, putting the burden of proving guilt on the prosecution. An open government will not be achieved by giving people tools to open the government. Instead we should start from the assumption of openness, publishing everything by default, and place the burden of proving a need for secrecy on members of our government. One example of why this is necessary is that we don't even know what to request; FOIA powers are only useful for opening up known unknowns. 2. Openness must be checked and balanced. Who watches the watchmen? Right now, no one. The honor system doesn't work here: members of government often have strong incentives to hide information from the public, and these are often the instances where openness is most important. Yet members of government can deny FOIA requests for all sorts of reasons, and requesters have little recourse. Without an impartial third party to assess whether secrecy is needed, members of government can simply claim anything needs secrecy, and there is no one to investigate whether this is actually true. One example of why this is necessary is the content of the Snowden leaks: the NSA, operating in secrecy with no oversight, has denied requests for information which we now know only because Snowden blew the whistle. 3. Openness must be a technical requirement. In order for openness to be the default, we need to change the way the government stores and distributes information. Software projects recognize this need for their projects, which is why systems like Git store every action. The technical requirements as I see them are: a) Accessibility Often members of government obstruct FOIA requests by distributing large amounts of data in unusable formats such as PDF. Distribution in a format which can be searched and analyzed is a necessity. b) Reliability There have been a few high-profile cases recently where data has been "lost" in hard drive crashes, accidental deletions, etc. We have no way of knowing whether these data losses were the result of actual technical problems or foul play. Data should be stored and backed up sufficiently that technical failure can't be used as plausible deniability for foul play. c) Distribution A recent FOIA request for Clinton Foundation emails has recently been delayed by 27 months. Whether this is stonewalling or technological failure is unknown but the effect is the same. If we started from the assumption of openness, the emails should easy to retrieve, and in fact should be published to an RSS feed or similar on a tight deadline. These technologies already exist; we should be applying them to government. 4. Openness must be incentivized. Currently, all the incentives are for members of government to obstruct openness. Wrongdoers obviously have incentives to hide their wrongdoing, but the problem goes deeper. Whistleblowers are ostracized when they aren't outright jailed. And there are no incentives that counteract these. Members of government delay requests, deny requests without justification, provide data in unusable formats, cover up wrongdoing, or even in some cases outright counterattack the person asking for information, and these members of government are never punished with more than slap on the wrist. In fact, they are often rewarded. We need to provide strong incentives for openness. Whistleblowers should have strong protections. Data should be released on a tight deadline and in a usable format with fines and firings for failure--even if there are technical reasons, because people unable to meet the openness requirements of their jobs should not hold those jobs. People who cover up wrongdoing in government should be prosecuted along with the wrongdoers (by an impartial third party, since checks and balances are needed). Any set of laws intended to promote openness will be ineffective if it doesn't have teeth.