FOIA Facts: Chief FOIA Officers NamedBy Scott A. Hodes, Published on February 15, 2006
Agencies have now named their Chief FOIA Officers pursuant to Executive Order (EO) 13392. This act is the first milestone of the EO which was issued to increase agency FOIA performance on December 14, 2005.
The Chief FOIA Officer is supposed to be "a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency." Most agencies have complied with this requirement by naming Chief FOIA Officers at that level. However, from the list of Chief FOIA Officers available at the Department of Justice's FOIA website, some agencies have not met this requirement. The Securities and Exchange Commission (SEC), an agency that has seen the numbers of FOIA requests to it rise dramatically over the years, named its FOIA/PA Branch Chief, Celia Winter to be the Chief FOIA Officer. Ms. Winter is responsible for overseeing the processing of FOIA and Privacy Act requests made to the SEC, a position that I do not believe is considered Assistant Secretary or equivalent level at any other federal agency. Additionally, the Federal Housing Finance Board named Janice A. Kaye, their FOIA Officer, which may not be at the acceptable level.
Furthermore, other agencies have also made questionable appointments. The Environmental and Protection Agency named Linda Travers, an Assistant Manager, Office of Environmental Information. The Department of Agriculture named Peter J. Thomas, a Deputy Assistant Secretary, which is of course one step below an Assistant Secretary. The Office of the Director of National Intelligence named Joseph P. Mullin Jr. an Executive Administrator for the Deputy Director of National Intelligence for Management, a position which is hard to figure out exactly what level it is.
I challenge OMB and the Department of Justice to go back to these agencies and ask them to either provide proof that these appointments are at the required level. If the agencies fail to prove this fact, they should be required to appointment individuals at the proper level.
The reason this is important is that the EO wanted individuals at a certain level for a reason. The reason is that the higher the appointment, the more weight the individual would have in getting results in their delegated responsibilities under the EO (which to summarize, making agency FOIA processes work better). By appointing the individual in charge of the program or deputies, agencies show scorn for the process named in the EO and by implication the FOIA itself.
As this was an EO, there are no remedies for FOIA requesters to challenge these appointments. This, in and of itself, is one more reason that FOIA legislation is needed with stronger oversight of certain agency FOIA practices.