FOIA Facts: My Proposals for the FOIABy Scott A. Hodes, Published on June 29, 2008
Last year, the FOIA was amended. However, there were a number of things that could strengthen the law that were left out of the final bill. This month, I make two proposals that would help FOIA requesters.
Initially, I am not going into the funding of agency FOIA Operations. I’ve written about it a lot, both here at LLRX and on my blog, and those who regularly read me know my position (find a way to directly fund agency FOIA Operations).
My first proposal is to put a time limit on information agencies can invoke the deliberative process privilege of [5 USC 552(b)(5)] exemption 5". The deliberative process privilege protects recommendations made during agency policy making. The theory behind it is that if lower level employees’ opinions to the ultimate decision-maker become public, they and their co-workers will be more likely to carefully weigh future recommendations. This, in theory, will chill agency decision making because employees will be afraid to make any type of recommendation that could be construed as controversial or silly. Thus, these opinions and recommendations are protected under the privilege. Presently, material that is protected under this privilege is arguably protected into the infinite future. If someone makes a FOIA request for information on an issue that occurred in the 1970’s (and the agency still has the documents), anything that meets the requirements of the deliberative process privilege can be protected even if it is thirty years old.
I propose that a five year limitation on otherwise deliberative material be written into the FOIA. Five years from the time a recommendation was made gives employees’ recommendations some time from not being made public but doesn’t bar the public from finding out an agency’s thinking until it is just a historical aside. Of course, some government employees may not like this as they may spend 30 or 40 years in their position. However, I believe the interests of public disclosure outweigh the complete barring of finding out how agency decision making is made.
A positive side effect from my proposal is that once it is decided that material is protectable under the privilege, there will be a set time that the material must be made public. This will help agencies in processing FOIA requests, the courts in making decisions about this type of material and requesters in letting them know when they can expect a release of material.
My second proposal is that the entitlement for attorney fees should be opened to all who meet the test for eligibility of attorney fees. Under current law (and the latest FOIA amendments), a requester who shows that he is eligible for attorney fees must also meet the test for entitlement of attorney fees.
To be entitled for attorney fees, four factors come into play: 1) the public benefit derived from the case; 2) the commercial benefit to the complainant; 3) the nature of the complainant’s interest in the records sought; and 4) whether the government’s withholding had a reasonable basis in law. Thus, individuals suing for their own records or companies suing for material that they have a commercial interest in receiving are unlikely to be ruled entitled to attorney fees, even if they are eligible for them.
Thus, I propose that the entitlement test be done away with. If a requester can show that they are eligible for attorney fees, which means they had to go to court to get the material requested, they should not be further required to show entitlement. I believe eligibility should be made the same as entitlement.
Of course, agencies will not be keen to this idea. However, if they process material in a timely and proper fashion, FOIA lawsuits will be a much rarer occurrence and the payout of attorney fees will be a rare occurrence.