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Wednesday, March 11, 2020
TRAC Sues DOJ's Office of Information Policy for Failure to Comply with Freedom of Information Act
(11 Mar 2020) The co-directors of the Transactional Records Access Clearinghouse (TRAC) at Syracuse University have filed suit under the Freedom of Information Act (FOIA) against the Office of Information Policy (OIP) of the Department of Justice (DOJ) for withholding basic information regarding its receipt and processing of FOIA matters. Also sued in the action is the Environmental Protection Agency (EPA).Given that many agency records are now stored in electronic databases, OIP's claim that it is under no legal obligation to search its own database strikes at the very core of the Freedom of Information Act's public access provisions. This refusal is more shocking since the mission of the DOJ's Office of Information Policy is to "encourage and oversee agency compliance with the Freedom of Information Act (FOIA)."
Moreover, as the nature of TRAC's FOIA request is focused on OIP's handling of FOIA cases, OIP's lack of compliance with FOIA raises further questions about the OIP's commitment to its stated mission.
It is especially egregious for an agency to supposedly "upgrade" its database system, yet in doing so not include the ability to make records in its database system readily reproducible—a capability that the agency admits previously existed before this "upgrade."
The suit arises as part of TRAC's ongoing research project using a quarterly survey to assess the compliance of almost two dozen federal agencies under the Freedom of Information Act (FOIA). As part of this effort, TRAC submitted a FOIA request in October 2019 to the Office of Information Policy (OIP) within the Department of Justice (DOJ) asking for basic information about the agency's processing of FOIA requests.
In November 2019, OIP responded to TRAC claiming that they cannot search their records, then directed TRAC to submit a FOIA request to the Environmental Protection Agency (EPA), which the OIP alleges manages OIP's database system, FOIAonline.gov. TRAC appealed, and also forwarded its request to EPA for OIP's records. The EPA confirmed receipt but failed to respond further.
The requested information was straightforward such as the date of each FOIA request and when it was received, the track assigned, and the date the request was closed. TRAC purposely did not ask for any information that might be cause for redaction, delay, or difficulty. The OIP has responded to identical FOIA requests from TRAC in the past.
Previously TRAC filed suit against the CIA for similarly refusing to search its FOIA database in response to our quarterly survey. On September 10, 2019 United States District Judge Tanya S. Chutkan ruled "the court is unconvinced by the CIA's argument that writing new computer code to locate responsive records in its database or compiling the resulting records constitute the creation of a new record. ... [A]s Congress noted regarding the E-FOIA Amendments, '[c]omputer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information.'" Following this ruling, the CIA agreed to search its database and turn over all requested non-exempt records.
Plaintiffs in the lawsuit are Susan B. Long and David Burnham, co-directors of TRAC, a non-partisan research data center at Syracuse University's Newhouse and Whitman Schools.
For this suit, TRAC is represented on a pro bono basis by renowned FOIA attorney David L. Sobel based in Washington, D.C.
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