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

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

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.

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