Knowledge, Skills & Abilities. FOIA Redaction Workshop Denver, Colorado. Instructors. Scott Hodes, Esq.

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1 American Society of Access Professionals FOIA Redaction Workshop Denver, Colorado June 18, 2015 Instructors Scott Hodes, Esq. Fred Sadler, Consultant (FDA/HHS FOI Officer, Retired) Knowledge, Skills & Abilities Time Needed to consult with subject matter experts Search, prepare, review, copy, redact electronically, double-check work, release, & post to net Understanding/comprehension Knowledge level of FOI, case law, internal regs & policy, subject matter expertise, training or mentoring Work Habits Ability to focus, understand, research, consult, work autonomously and make supportable decisions (with appropriate documentation) Position Supervisor, mentor, trainee, search only, quality control 1 1

2 EFOIA Requirements make a reasonable effort to estimate the volume of redactions... (5 USC 552(a)(6)(F)), and clearly identify the location & extent of redactions... and reasonably segregable portions of records shall be provided... (5 USC 552(b)) Proper FOI Requests Only has to reasonably describe records sought Doesn t have to be labeled FOI request Submitted in accordance with (your agency) regulations May be processed under both FOIA and the Privacy Act (even if not stated in the request) Best Practices Honor the intent of a request No requirement to log a request until it s perfected; clarification & communication are critical Approach requesters in a customer friendly manner Approach FOIA processing with a presumption of disclosure - openness prevails 2 2

3 Best Practices Contact & negotiate with requesters clarify or modify a request reflect changes in writing (cover letters) Scoping Records identify & redact non-responsive information (See FOIA Update handout) - scoping is not a denial Discretionary Release speculative or abstract fears are insufficient grounds to withhold a record; recommend using foreseeable harm test OPEN Gov Act, sect. 6(a) An agency may toll the statutory time period. An agency may make one request for information and toll the statutory time period while awaiting information that it has reasonably requested from the requester. You may toll any number of times for fee related reasons President Obama s Memo, Jan. 21, 2009 Adopt a presumption of disclosure Take steps to make records public & use technology to disseminate info pro-actively post information online in advance of a request ( reasonable expectation ) internet; responses; electronic, publicly accessible formats Update guidance to increase & improve information dissemination 3 3

4 Attorney General Holder s March 19, 2009 Memo Make partial disclosures when possible Unnecessary bureaucratic hurdles have no place in open Gov t Agencies should review documents & determine whether discretionary disclosure would result in foreseeable harm Determinations of foreseeable harm are made case-by-case, but factors to consider are document age & content sensitivity Discretionary Release Not eligible for all exemptions: No discretion for exemptions 1, 3, 4, 6, 7C, 7D If you reasonably foresee that disclosure would harm a protected interest, use discretion in releasing records under exemptions 2, 5, parts of 7, 8 & 9 (maintain an administrative record) Redaction Requirements (Inc. computer redaction) Indicate extent and location of each redaction, at the site: 1997 EFOI requirement Brackets, lined out, blacked or whited-out, or e-redaction Must ID the exemption at the site of every redaction: OPEN Gov t Act requirement,

5 OPEN Gov Act, sect. 12 Requires agencies to: Indicate directly on the released portion of the record the amount of information deleted (inc. denials) Adds add l requirement that agencies indicate the exemption under which the deletion is made. Electronic Redaction Automatic redaction of key words (reduces errors) Polished appearance Simplifies restoration of deletions Records easily stored & retrieved Requires software, hardware & IT support 5 5

6 Non-standard Redactions (Note possible Privacy Act implications*) Video & audio tapes* Microfiche WAVE files (voice mail messages) NARA: Biometric indicators* Photographs* PDFs Cross-check Your Work Ensure both EFOIA & OPEN Gov Act requirements are met: Exemptions correctly identified All appropriate redactions made Text completely obscured E-records can t be un-redacted (pixel replacement) Maydak Decision Maydak v. Dep't of Justice, 218 F.3d 760 (D.C. Cir. 2000) The D.C. Circuit's decision is the 1st FOIA case in which an appellate court ordered disclosure of records, on the grounds that the agency waived its right to invoke FOIA exemptions by not doing so at an earlier stage of the litigation. That waiver rule, which threatens disclosure based upon an agency's handling of a FOIA matter in litigation (not at the administrative level) holds that an agency ordinarily must raise "all its FOIA exemption claims in the original district court proceedings," or risk being denied the right to subsequently rely on any exemption not previously raised. 6 6

7 Denials & Appeals for Redacted Materials Denials process Comes with automatic right to appeal Reasonable effort to estimate volume of withheld materials Appeals process Provides for right to litigate Maintain administrative record for redaction consultation OPEN Gov Act, sect. 5 Where a court orders the production of records improperly withheld... and assesses reasonable attorney fees and... issues a finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee responsible for the withholding. Internet Availability Post frequently requested records on the internet: DOJ guidance = 3 times or more Obama memo = when expectation is records will be frequently requested Maintain working relationship with web master ensure ability to break a net link to render a document inaccessible IF needed 7 7