Public Comments Submitted by Robert Hammond on May 30, 2021 - Moot Appellate Determinations
from: Robert Hammond
to: FOIA Advisory Committee
date: May 30, 2021, 11:47 PM
subject: Public Comments Attached. June 10, 2021 Meeting.
"Moot Appellate Determinations"Public Comment Presentation to FOIA Advisory Committee
by Robert Hammond
June 10, 2021
PUBLIC COMMENT by ROBERT HAMMOND. MOOT DETERMINATIONS - NAVY & DOJ.
In my public Comments of March 24, 2021 and May 3, 2021 I addressed “Moot” appellate determinations and sought action by DOJ OIP.
A “Moot” determination is an instance where the appellate authority takes an action after an appeal is submitted and then rather than adjudicating the appeal based on the facts that existed at the time of the appeal as required, improperly declares an appeal “Moot” resulting in FALSE REPORTING in annual FOIA Reports.
DOJ FOIA Handbook for FOIA Reports states that, “On appeal the agency is reviewing an action that already occurred and so the disposition categories capture whether that initial action was upheld by the appellate authority.” (DOJ FOIA Handbook for FOIA Reports).
MARCH 24, 2021 PUBLIC COMMENTS RELIEF SOUGHT
- FOIA Advisory Committee adopt a recommendation for DOJ OIP to respond to my FOIA Requester Compliance Inquiries and for DOJ to issue guidance regarding this matter.
- Track this matter until DOJ issues guidance.
MAY 3, 2021 PUBLIC COMMENTS RELIEFT SOUGHT
- DOJ consider an Advisory stating that FOIA appeals must be adjudicated based on the facts at the time an appeal is received and that any subsequent actions do not render an appeal moot. Further, that “moot” is not a statutory or DOJ approved basis for denial. Should DOJ decline to do this, I am prepared to compile a presentation for public discussion documenting numerous, serious, gross abuses and further justification for such an Advisory. Such abuses include Department of Navy redacting its Annual FOIA report (required by statute to be public) and then on appeal releasing an unredacted copy and declaring my appeal “moot.” Nonsense.
SUMMARY OF NAVY "MOOT" DETERMINATIONS
“Moot” is used extensively by Navy, and it is grossly abused as a means not to grant appeals and not report the granting’s in Annual FOIA Reports. DOJ apparently uses it extensively as well.
| “Moot” | Navy | Other DOD | DOJ | WHY |
|---|---|---|---|---|
| FY 2020 | 67 | 1 | 155 | ??? |
| FY 2019 | 64 | 1 | 199 | ??? |
| FY 2018 | 78 | 3 | 197 | ??? |
| FY 2017 | 56 | 1 | 177 | ??? |
| FY 2016 | 23 | 13 | 95 | ??? |
NAVY FY 2020 MOOT DETERMINATIONS & NUMBERS DON'T MATCH
“After reviewing their databases, Air Force, Army and Navy updated the number of pending Administrative Appeals as of the start of the Fiscal Year.”| Agency/Component | Number Affirmed on Appeal | Number Partially Affirmed & Partially Reversed/Remanded on Appeal | Number Completely Reversed/Remanded on Appeal | Number of Appeals Closed for Other Reasons | TOTAL |
|---|---|---|---|---|---|
| NAVY | 179 | 22 | 30 | *100 | **331 |
*Does not match VI.C.(2) below which shows 119 vice 100
** Raw data shows 333 vice 331
|
Agency / Component |
No Records |
Records Referred at Initial Request Level |
Request Withdrawn |
Fee- Related Reason |
Records not Reasonably Described |
Improper Request for Other Reasons |
Not Agency Record |
Duplicate Request or Appeal |
Request in Litigation |
Based Solely on Denial of Request for Expedited Processing |
Other |
|---|---|---|---|---|---|---|---|---|---|---|---|
|
NAVY |
10 |
5 |
15 |
3 |
10 |
5 |
1 |
2 |
1 |
0 |
67 |
|
TOTAL |
*119 |
||||||||||
*Does not match Appels Closed which shows 100 vice 119
|
Agency / Component |
Description of "Other" Reasons for Denial on Appeal from Chart C(2) |
Number of Times "Other" Reason Was Relied Upon |
TOTAL |
|---|---|---|---|
|
AF |
Unable to Contact Requester |
1 |
1 |
|
DoD IG |
Moot |
1 |
1 |
|
NAVY |
Moot |
67 |
67 |
|
NSA |
Untimely |
4 |
4 |
| Agency / Component | Number of Backlogged Appeals as of End of the Fiscal Year from Previous Annual Report | Number of Backlogged Appeals as of End of the Fiscal Year from Current Annual Report |
|---|---|---|
|
NAVY |
182 |
242 |
JUNE 10, 2021 FOIA ADVISORY COMMITTEE ACTION SOUGHT
- DOJ issue an Advisory that appeals must be adjudicated based on the facts at the time of the appeal and that “Moot” is not allowed.
- DOJ and Navy brief their “Moot” determinations at the next open meeting identifying all that involve actions occurring after the administrative appeal and categorizing all others.
- FOIA Advisory Committee include a discussion of this matter and a recommendation in your next report to Congress.