Specially-Designated 'FOIA Denial Officers' Are Handling The Dept. Of Education's Rejected Requests

Failures

from the we've-got-some-bad-news-and-some-bad-news dept

Thu, Aug 14th 2014 6:12am — Tim Cushing

While you would think this position exists at multiple agencies (NSA, FBI, CIA, the NYPD), it's never been captured in stark black-and-white. Morgan Smith, reporter for the Texas Tribune, recently tweeted out a photo of a rejected FOIA request. A rejected FOIA is not necessarily newsworthy. But it is when it's been rejected by someone bearing the unlikely title of "FOIA Denial Officer."

Here's to transparency in job titles! #foia pic.twitter.com/x3nxnDL29a
— Morgan Smith (@MorganSmith) August 12, 2014

Taylor D. August, of the Dept. of Education's Office for Civil Rights, is also a FOIA Denial Officer. Considering the government's general antipathy towards transparency, you'd think several agencies would have a full-time request denier on staff. But while many agencies spend more time stonewalling and denying requests, only the Dept. of Education actually has designated employees on hand solely to reject requests.

A look at the DOE's FOIA FAQ gives us the first clue:

10. Who has the authority in ED to withhold documents (in part/whole)?

The FOIA Officers, the Office of Inspector General and the Regional FOIA Denial Officers have the authority to withhold documents.

It appears this agency is extremely well-equipped to handle numerous rejections. Three tiers of rejection are available to requesters, running all the way up to the OIG. There's no reason given as to why the DOE would need regional "denial officers," but this position traces back to 2006.

In a section titled (of all things) "Customer Service," the DOE details its FOIA response automation, which routes through the Office for Civil Rights. Citing the "significant number" of requests it receives (at that point averaging around 900 per year), the agency detailed its efforts to keep up with the paperwork.

To further customer service with respect to FOIA and Privacy Act requests, OCR has been a significant participant in the Department’s initiative to automate case management under these laws. Executive Order 13392, “Improving Agency Disclosure of Information,” issued on Dec. 14, 2005, emphasizes the need for more efficient and effective processing of FOIA and Privacy Act requests.

What most of us would believe was an order intended to increase the release of responsive documents, the DOE read it as an indication it wasn't rejecting requests efficiently enough.

In addition, in FY 2006, consistent with Executive Order 13392, OCR established new FOIA procedures, including delegation to the 12 OCR office directors of the authority of FOIA denial officers. This allows FOIA requests to be processed in a more efficient and timely manner, and establishes clear accountability for FOIA processing.

As of 2006, the DOE had 12 more officials dedicated solely to rejecting FOIA requests than all other government agencies combined. (Unofficial numbers obviously impossible to obtain, much less verify, but the term "FOIA denial officer" produces search results that indicate only the DOE has such a position.)

More details on the "Denial Officers" can be found in the agency's FOIA policies and procedures (embedded below.) Here's the definition of the term:

Denial Officers. The FOIA Officers, the Secretary's Regional Representatives, or officials designated by them (Regional FOIA Review Officers), and the Office of Inspector General (OIG) who are authorized to withhold records, in whole or in part, that fall within one (1) or more of the nine (9) exemptions or three (3) exclusions of the FOIA.

Initial determinations are made by regular FOIA officers who look for possible withholding exemptions and consider fee waivers. This is handled regionally and requests possibly eligible for rejection are passed on to one of the 12 regional denial officers.

In each instance in which it is recommended that record(s) or portion(s) thereof be withheld, carefully separate materials to be withheld from those to be released, redact (e.g., remove) all exempt information from the records, and forward a copy of the redacted materials, along with an unredacted version for comparison, to the appropriate denial official. Indicate where in the records the redactions occur and why the relevant exemption(s) apply;

In each instance where "no responsive records" are located, forward (a) a memorandum to the appropriate denial official describing with particularity what records (both electronic and hard copy) were searched, search times (differentiating between computer search times and manual searches since there is a different fee rate assessed for each of these searches), and who conducted the search, and stating that the search results were negative together with (b) a draft denial letter to the requestor to be signed by a FOIA Officer;

Denial officers will always be the be the bearer of bad news.

If the denial official agrees with the recommendation to deny the request, the denial official notifies the requestor in writing of the decision to withhold the information, in whole or in part, and informs the requestor of his/her appeal rights.

However, the denial officer isn't solely limited to writing rejection letters. He or she can also push back.

If the denial official disagrees with the recommendation to deny the request, he/she notifies the FOIA Coordinator and the PO Action Office and directs the FOIA Coordinator to provide the records to the requestor.

At which point, the requester receives the responsive documents thanks to a denial officer, but from someone whose title is less resolutely negative. As much fun as it might be to press the REJECT button, denial officers will never know the joy of making a requester happy. It's a thankless job with a brusque title… unless you're the sort of person who enjoys doling out rejection or simply takes pride in your work, no matter what that work might mean.

It seems odd that the DOE would stand alone in its creation of a FOIA Denial Officer. So many government agencies are more than happy to reject request after request (and appeal after appeal), but none have been so brutally honest as to create a position solely for this purpose. The DOE's system may actually be more streamlined than those at comparable agencies, but only the DOE has the strength of character to let requesters know that a fully and specifically trained expert is behind their request's rejection.

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Filed Under: accountability, department of education, foia, foia denial officers, taylor august, transparency

36 Comments

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Ninja (profile), 14 Aug 2014 @ 5:10am

Oh nice, they've joined the MPAA, RIAA etc in Denial. Except that the MPAA/RIAA have an entire Reality Denial Office so they are a notch up.
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Michael, 14 Aug 2014 @ 6:24am

Dear Sir,

The Department of Education officially denies these allegations.

Taylor D August
FOIA Denial Officer
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Anonymous Coward, 14 Aug 2014 @ 6:30am

The department of education stopping dissemination of information - is this ironic?
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Michael, 14 Aug 2014 @ 6:33am

Re:
Department of Re-Education
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Anonymous Coward, 14 Aug 2014 @ 6:35am

would someone like to enlighten me on what could be so 'uncomfortable' a subject, as far as education is concerned, that would necessitate a separate body to just stop people getting this information? are there specific subjects being taught, perhaps underhandedly, to children that would enrage parents? has there, for example, been a sudden surge in teachers of an 'offensive religion' or perhaps are on the list of 'sexual offenders'? there has to be something pretty drastic happening in education that warrants information being withheld. this smells rather fishy to me!!
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Anonymous Coward, 14 Aug 2014 @ 6:35am

Who did it?
2 minute hate against the Denial Officer is permitted.

All other officials names are permanently shrouded and those persons may do their work in secrecy and darkness. You will never know who is actually behind the denial, the Denial Officer is the point person. Conflicts of interest? Shady dealing? Hidden forever.
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kenichi tanaka (profile), 14 Aug 2014 @ 6:46am

Where exactly in that letter did it say that they were denying the request? I saw no such thing other than "it may be necessary to release this document under request". How does that state that the FOIA request was denied?
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Anonymous Coward, 14 Aug 2014 @ 6:48am

So sue those denial officers as being personally liable for breaches. Make it toxic for a person to hold that position within government.
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justok (profile), 14 Aug 2014 @ 6:57am

At least it was an officer and not a corporal or sgt.
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PaulT (profile), 14 Aug 2014 @ 7:03am

Re:
Bad wording in the article. The photo is there to prove that the job title of "FOIA Denial Officer" exists, not to show an example of a denied request.
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Anonymous Coward, 14 Aug 2014 @ 7:15am

While the title is badly chosen, the function is a positive one and one in opposition to denials.

Please note that the denial officers never even get notified if the FOIA officer decides to release the information. They only get involved if there already was a decision to deny, and their primary function is to determine wether this decision was correct and, indeed, overrule it if they deem this appropriate. In other words: It's purely a second chance to get it right in the interest of the public. They can only affect the process toward more transparency, never against it. That's supposed to be a Good Thing, isn't it?
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amoshias (profile), 14 Aug 2014 @ 7:21am

This seems eminently reasonable.
DoE has a specific chain of command with specific responsibilities. They title them honestly, and before a denial goes out it goes in front of someone who has expertise in that particular task. As someone who works extensively with the VA, and their army of NON-specialists, I fail to see why this is a bad thing.

Obviously I see why it's an easy and funny target to make fun of. I just fail to see why it's a bad thing. It sounds like this is a reasonable position with a smart portfolio - to be the central point of contact for denials, and to, if necessary, push back on denials issued by overzealous officers. Who is more likely to improperly redact embarrassing info - the guy who works two cubes down from the office of the person who will be embarrassed, or someone in an office far away, who doesn't know the people involved?

Until you show me some evidence that DoE rejects FOIA requests at a higher rate than other agencies - or just a higher rate than you might expect - I'm going to call this "good but unfortunately honestly worded policy" rather than something similar. Unfortunately, I couldn't easily find (in the 30 seconds I dedicated to the task) a comparison of FOIA denial rates by agency.

Here's the problem - the DoE is being honest, and they're getting laughed at (at best!) for it. That means - assuming that a DoE higher up hears about this - that next year the honest title goes away, in favor of "Senior FOIA officer" or something like that. Nobody benefits from that.
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amoshias (profile), 14 Aug 2014 @ 7:27am

Re:
To go even further, the only way I can read this letter that makes sense is that it's FROM a denial officer, pushing back against an improper denial by a line FOIA officer.

The wording just doesn't make sense if it were sent to a requester. Go twitter and its ability to provide a range of context...
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Anonymous Coward, 14 Aug 2014 @ 7:36am

That the job I want. See that pile of paperwork? Send rejections to them all.
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Anonymous Coward, 14 Aug 2014 @ 7:44am

Re:
Hmm. The problem may be that they NEED this many denial officers. Think of how many requests must be denied if this many people work only on initially-denied requests. (And this from a department which shouldn't need to keep much secret - this isn't the FBI or something.)
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Anonymous Coward, 14 Aug 2014 @ 7:51am

Re: This seems eminently reasonable.
Here's the problem - the DoE is being honest

The DoE is honest about being dishonest. That's the joke.
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amoshias (profile), 14 Aug 2014 @ 8:03am

Re: Re: This seems eminently reasonable.
Yes - and I'm trying to make the point that there are much better targets in the federal government - IE the many, many agencies that hide their FOIA denials behind walls of doublespeak. Look at the letter. That is actually an example of a FOIA denial officer doing the job the DoE claims they put him or her there to do - push back on an improper denial of a FOIA request. Maybe the existence of denial officers leads to more frequent denials; the one data point i have suggests that's not the case.

DoE officials are like everyone else in the world; they don't like being made fun of. And historically the likeliest response - if this winds up all over the news - is that they will rename the denial officers something less honest. That's in nobody's best interest, so rather than making the cheap jokes, I'm just suggesting we take a second to look at the facts. Whether they're hostile to FOIA requests or not, it is better that these guys have the title that they have.
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James, 14 Aug 2014 @ 8:20am

Re: Re: Re: This seems eminently reasonable.
You're new here, aren't you?

You can't stop the circlejerk with logic, reason, rationality or compassion.

But thanks for trying. Sincerely, thanks.
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mmrtnt (profile), 14 Aug 2014 @ 8:23am

Next Stop
I can haz dystopia?
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Digger, 14 Aug 2014 @ 8:30am

What could possibly be top-secret with the DoE?
I mean seriously? Are they trying to cover up the government's master plan to turn it's citizens into mindless zombies?

We all know that the "No student left behind" is a plot to limit education to the top 1% of the nation so that we can all be docile sheople and not question our betters while living out scenes straight from Idiocracy.
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Derek Kerton (profile), 14 Aug 2014 @ 8:34am

Wait, Is This Terry Gilliam?
Seems like I'm watching Brazil (the film), not reading Techdirt.
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Matthew A. Sawtell, 14 Aug 2014 @ 8:50am

A more interesting question would be...
... are there any parts of the government (federal, state, and/or local) that are NOT denying FOIA requests?
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Anonymous Coward, 14 Aug 2014 @ 9:59am

Re:
To be fair there is the Family Educational Rights and Privacy Act of 1974 to think about.
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Michael, 14 Aug 2014 @ 10:15am

Re:
would someone like to enlighten me on what could be so 'uncomfortable' a subject, as far as education is concerned, that would necessitate a separate body to just stop people getting this information?

We would be happy to, but we have spent our budget for this on additional resources to deny FOIA requests. Perhaps if you vote to increase our budget next year, we will have additional resources to improve education in this area.

- The Department of Education
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Michael, 14 Aug 2014 @ 10:17am

Re:
It is a letter from a "Denial Officer". If you received a letter from a "Request Granting Officer", it will include what you asked for.

How hard is that?
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Michael, 14 Aug 2014 @ 10:19am

I thought "Denial Officer" just meant someone stationed on an African river.
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John Fenderson (profile), 14 Aug 2014 @ 10:22am

Re: This seems eminently reasonable.
If the title is being honest, then that's even worse, as it is saying there's a position whose sole function is to deny requests. There shouldn't be a "denial officer". There should be a position to impartially determine the status of the request.
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Chris Maresca (profile), 14 Aug 2014 @ 11:22am

Re:
Easy fix - FOIA Review Officer
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Anonymous Coward, 14 Aug 2014 @ 11:39am

Re: Re: This seems eminently reasonable.
" it is saying there's a position whose sole function is to deny requests"

That's not how I read it. A denial response will only be *sent* by a Denial Officer and not by any other officer. (And the twitter example shows a technical denial even though it states the documents may be made available later ie it is seemingly and possibly inviting a reworked request). A response including information (other than a denial) will be sent by A.N.Other officer.

So, in the case where the investigating officer (call them A) decides that a denial is to be made, the Denial Officer (DO) receives the denial information from the investigating officer A, agrees with it or rejects it, and if agreeing with it and if it sent then it is sent under the name of the Denial Officer DO and not A (the person who first investigated the request). That is, the rejection is not sent out under the name of the actual official A handling the request. This could done this way simply for logistical reasons - the first official investigating the request now closes that investigation case and any followup requests will be handled as if new and by whatever officer is assigned at the time. This procedure also ensures that any denial receives a review by a DO before being sent, so A or any other officer cannot decide on their own to issue a denial.
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John Fenderson (profile), 14 Aug 2014 @ 12:06pm

Re: Re: Re: This seems eminently reasonable.
I read it that way, too. I just don't see how that's more "honest". The whole thing seems designed to minimize transparency and increase bureaucracy.
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Coyne Tibbets (profile), 14 Aug 2014 @ 3:00pm

Efficiency in government
Wow! Finally, we've found efficiency in government. DOE has hired people specifically for the purpose of more rapidly saying, "No!!"

I imagine a giant piece of paper on the wall, describing the process every FOIA rejection officer is required to follow. No fancy decisions, boxes, cycles or any of that other waste: A lozenge at the top labeled "Start here" and another one just below, connected by a line and labelled "Reject request."

What could be more efficient than that?
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Anonymous Anonymous Coward, 14 Aug 2014 @ 3:14pm

NSA's 'Keep it All' is a Good Example for Them
Let's just require all governments to put everything online, all the time, real time, read-only of course, and kept forever. Then get a court order in order to except anything, including all 'classified' information. Oh, and the FISA court will not do for that last part.

I can see limited exceptions, but if we let the keepers define the exceptions, the definition of limited will be twisted like a pretzle.
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Anonymous Coward, 14 Aug 2014 @ 4:08pm

It seems likely to me that they're worried about getting sued for violating FERPA. This "Denial Officer" is probably more of a "FERPA Compliance Officer." I think this is probably getting blown out of proportion.
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Anonymous Coward, 14 Aug 2014 @ 5:31pm

Re:
would someone like to enlighten me on what could be so 'uncomfortable' a subject, as far as education is concerned

Maybe a child got left behind.
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Aaron (profile), 15 Aug 2014 @ 4:39am

Re: Re:
Then you lack reading comprehension skills. The letter is from a FOIA denial officer to the tweeter, denying her request... and the letter notes, in its signature block, that the denial itself may be subject to the Freedom of Information Act.
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Anonymous Coward, 15 Aug 2014 @ 5:52pm

"It seems odd that the DOE would stand alone in its creation of a FOIA Denial Officer."

I think you'll find that other agencies simply use different labels for their Denial Officers.

Most agencies probably thought that using such a title was actually giving the public too much information and so gave their denial officers less informative titles such as Public Retention Specialist.
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