Public Comments Submitted by Chad Garland on April 21, 2022
I am writing in my personal capacity to comment on a matter of public concern related to transparency and FOIA compliance — namely a Defense Department policy that denies the access rights of federal civilian and military personnel, particularly the staff of the Stars and Stripes newspaper who are members of the free press.
These written remarks recapitulate and expand on oral comments I intend to provide at the Chief FOIA Officers Council Meeting of April 21, 2021.
At least five DoD memos issued since 1991 state that while “any person” may file a public records request, a “representative of a federal agency” may not.
The memos cite the statutory definition of “person” at 5 U.S.C. § 551(2) as meaning “an individual, partnership, corporation, association, or public or private organization other than an agency.” (Four memos attached, dated 1999 & 1991, 2018 and 2021.)
These memos have never defined “representative of a federal agency,” however, nor have they cited any statute, regulation or directive that does. My own research has failed to turn up such a definition. Moreover, in an email on Nov. 24, 2021, DoD spokeswoman Susan Gough refused to answer my emailed inquiry of Oct. 18, 2021, which asked for a citation to any such definition, among other information about the DoD policy and its alleged statutory basis. (Both emails attached.)
But tje DoD’s memos use “representative of a federal agency” to describe Stars and Stripes personnel and uniquely disqualify them from using FOIA — unilaterally, universally and without qualification or elaboration.
Consequently, these memos have been cited to deny employees' personal rights on an unknown number of requests over the past 30 years — well more than a dozen that explicitly stated they were made in a personal capacity, on off-duty time and using personal resources.
In March last year, a new DoD memo acknowledged for the first time that Stars and Stripes reporters may use the FOIA as individuals, but it said their requests must be denied if they fail to show proof that their federal employer gave them permission to make a request not on its behalf.
Let that sink in: DoD says that because Congress expressly granted FOIA rights to any person, certain citizens must get agency approval to file FOIA requests in their private capacity as persons.
DoD couches this requirement in a reference to the department’s ethics rules regarding outside employment, but the requirement established by the memo is not limited in any way to requests made as part of outside employment. Nor do the ethics rules themselves establish such a rule concerning “any person,” or even any Stars and Stripes reporter.
Whatever the case, FOIA rights as described in 5 U.S.C. § 552(a)(3)(A) are not contingent on adherence to a requester’s any and all valid laws or regulations, or to the requester’s ability to prove compliance.
Rather, other than the exemptions that apply to the information contained in the records themselves, agencies have no statutory basis to deny a request other than failure to reasonably describe records sought or to follow published agency rules about time, place, fees and procedures.
Furthermore, the FOIA establishes an equal right of access and does not permit agencies to differentiate between requesters on the basis of identity, need, plans or purposes, and cannot apply different rules to some persons and not others based on such factors about the requester’s individuating characteristics. (And any rules a requester must follow must be published in the Federal Register, per the FOIA.)
But DoD has suggested the statutory language requires its special policy uniquely affecting certain Stars and Stripes employees, and that the agency has no discretion. (See attached Susan Gough email of Oct. 8, 2021, paragraph 6.) This is hogwash.
If that were true, such a statutory requirement would affect far more federal employees, if not all of them, as the FOIA’s terms apply government-wide. And agencies would have published implementing rules in the Federal Register. Yet DoD hasn’t even published its policy there.
The vague conclusions in DoD’s memos have never been incorporated into, expanded upon or even directly referenced in DoD FOIA regulations or supplemental regulations, directives, manuals or the DoD FOIA Handbook. No such rule has ever been published in the Federal Register for public inspection or subjected to public comment.
Nor does DoD enforce its policy equally against all of its employees, despite regulations requiring that only laws and directives affecting all DoD employees will affect Stars and Stripes personnel. (See 32 C.F.R. § 246.4(d))
Rather, DoD unabashedly singles out Stars and Stripes reporters.
Those reporters differ from all other DoD employees only in that regulations require they be treated as members of the free press, not government officials. (See 32 C.F.R. § 246, Appendix D, paragraph C.2.a)
Yet DoD has told me outright that it considers them agency representatives exclusively because of their press status.
Any other federal employee may make a FOIA request in a personal capacity, DoD says, but not those who self-identify as members of the press, whether in their requests or otherwise, because they’re presumed not to be seeking records for personal or private use . (See attached Susan Gough email of Oct. 8, 2021, paragraph 7 beginning “Any federal employee.”)
This is clear discrimination against federal employees based on how they have exercised their First Amendment rights. It is an attempt to deny FOIA rights on the basis of a requester’s identity, press status and presumed intentions. It must be rescinded.
(It is baffling that comments from a top DoD public affairs official, who appears to have been assisted by a top official with DoD’s civil liberties office, seem unable to grasp that publication of one’s own written work under one’s own name could be a personal and private use of information.)
I ask that, all agencies affirm in their rules that when invoking FOIA, federal employees must be treated as “any person” asserting their own private rights, unless their request explicitly states otherwise.
(c) 443-745-3240 || email@example.com
http://www.facebook.com/ctgarla + @chadgarland + http://www.linkedin.com/in/chadgarland