As someone who's been on both sides of FOIA, FOIA's a total mess.
--> Congress applied it to the government while exempting themselves. This weasel approach also weakened their ability to ensure it gets enforced. Bringing the hammer down on an unresponsive agency risks uncomfortable counter-accusations of legislated hypocrisy. The entire government would prefer people not pay much attention to this area of the law.
--> An official's use of a personal email / gmail should not be enough to circumvent a FOIA search. Although it makes it easier to hide, it's hard to disappear entirely.
The FOIA request should always include search of specific officials' personal email and cellphone records that would also be responsive to the request. If there's evidence of government business being done on personal accounts, it generally opens up the entirety of the account for greater scrutiny re: FOIA and litigation.
The FOIA request should also reference specific places this evidence might be found: Sent folders, Deleted folders, Archived folders, email metadata from the USG network or laptop, Messaging apps, Photo apps (where documents can be duplicated for mobile transfer off-USG networks), cellphone call and text logs, etc.
--> Exemption 5.1 (Privileged communication within deliberative process) is often used by agencies to try and thwart FOIA. One tip is to know that if a document is tagged or could be reasonably inferred to be "Final" (for example, by having "final" appear in the file name or email) it is not covered by this privilege. If something is final, it is by definition no longer within the deliberative process. It may fall on the FOIA requestor to ensure this is followed correctly.
--> And finally, FOIA requests should be made to all agencies potentially involved in the topic being investigated - even those who may have just been added as a cc. The USPTO FOIA officer might not redact the same parts of an email that HHS thinks should be excluded. If there's reason to believe the same email went to a number of officials, try all of them. (And think through offices that get cc'd on a lot of things.) These folks are busy and their responses can be far less coordinated with each other than one might think.
And lol, if you think this admin is gonna prioritize transparency or FOIA staffing, you are delusional. There are several agencies that have already RIF’d the components responsible for this work. They do not GAF. There are also issues with the proposed solution to offer online courses in FOIA. While a nice idea, FOIA duties are usually just one of many hats that folks wear. Agencies don’t want to hire someone who can “only” do FOIA. At a minimum, they also want the person who can litigate FOIA challenges on behalf of the agency, and they likely also want someone who can do IP law, or personnel law, or some other specialty that can provide value to the agency.
Even with the best software, Agency procedures typically require an actual human to read all responsive documents. Software is good for redactions of “proper nouns” and the like, but it isn’t sophisticated enough to make redactions pursuant to the “privileged communications” exemption for deliberative/pre-decisional communications and attorney-client privilege.
As someone who's been on both sides of FOIA, FOIA's a total mess.
--> Congress applied it to the government while exempting themselves. This weasel approach also weakened their ability to ensure it gets enforced. Bringing the hammer down on an unresponsive agency risks uncomfortable counter-accusations of legislated hypocrisy. The entire government would prefer people not pay much attention to this area of the law.
--> An official's use of a personal email / gmail should not be enough to circumvent a FOIA search. Although it makes it easier to hide, it's hard to disappear entirely.
The FOIA request should always include search of specific officials' personal email and cellphone records that would also be responsive to the request. If there's evidence of government business being done on personal accounts, it generally opens up the entirety of the account for greater scrutiny re: FOIA and litigation.
The FOIA request should also reference specific places this evidence might be found: Sent folders, Deleted folders, Archived folders, email metadata from the USG network or laptop, Messaging apps, Photo apps (where documents can be duplicated for mobile transfer off-USG networks), cellphone call and text logs, etc.
--> Exemption 5.1 (Privileged communication within deliberative process) is often used by agencies to try and thwart FOIA. One tip is to know that if a document is tagged or could be reasonably inferred to be "Final" (for example, by having "final" appear in the file name or email) it is not covered by this privilege. If something is final, it is by definition no longer within the deliberative process. It may fall on the FOIA requestor to ensure this is followed correctly.
--> And finally, FOIA requests should be made to all agencies potentially involved in the topic being investigated - even those who may have just been added as a cc. The USPTO FOIA officer might not redact the same parts of an email that HHS thinks should be excluded. If there's reason to believe the same email went to a number of officials, try all of them. (And think through offices that get cc'd on a lot of things.) These folks are busy and their responses can be far less coordinated with each other than one might think.
Need to fire the slow pokes. Get someone in there capable of doing the job.
Is it Time to show up in person to get the records?
And lol, if you think this admin is gonna prioritize transparency or FOIA staffing, you are delusional. There are several agencies that have already RIF’d the components responsible for this work. They do not GAF. There are also issues with the proposed solution to offer online courses in FOIA. While a nice idea, FOIA duties are usually just one of many hats that folks wear. Agencies don’t want to hire someone who can “only” do FOIA. At a minimum, they also want the person who can litigate FOIA challenges on behalf of the agency, and they likely also want someone who can do IP law, or personnel law, or some other specialty that can provide value to the agency.
Even with the best software, Agency procedures typically require an actual human to read all responsive documents. Software is good for redactions of “proper nouns” and the like, but it isn’t sophisticated enough to make redactions pursuant to the “privileged communications” exemption for deliberative/pre-decisional communications and attorney-client privilege.