Public Comments Submitted by Robert Hammond on May 3, 2021 - Violations of the ADA in FOIA Redactions
From: Robert Hammond
Sent: Monday, May 3, 2021 11:36 AM
To: firstname.lastname@example.org, Alina Semo, Kirsten Mitchell
Subject: Corrected Copy. RE: PUBLIC COMMENT FOIR POSTING, OGIS ANNUAL OPEN MEETING MAY 12, 2021. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT IN FOIA REDACTIONS
PUBLIC COMMENT, OGIS ANNUAL OPEN MEETING MAY 12, 2021
(Also submitted to FOIA ADVISORY COMMITTEE
& CHIEF FOIA OFFICERS COUNCIL)
VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT IN FOIA REDACTIONS
Please post and address as a topic for the next meeting the following comments:
Past FOIA Advisory Committee meetings have discussed the need for Americans with Disabilities Act Section 508 Compliance and recommended seeking additional funds from Congress. Additionally, the Chief FOA Officer Council has established a 508 Compliance Working Group. I would like to advance those efforts with a simple fix that does not cost any money. An easy win that will improve processes for everyone.
In a basic matter that is a serious problem and requires no additional funding whatsoever, multiple agencies, including DOD, DOJ and EPA continue to issue redactions to documents that do not comport with the FOIA or the ADA Section 508 with respect to font size, color, and contrast and searchability.
In just one of many examples, in violation of the Americans with Disabilities Act (ADA) the United States Marshall's Service released a redacted record, "PDF USMS_Redacted." That record (USMS_Redacted) wrt font, color, and contrast, contains redactions in Arial 5.5-point, red font against a black background, violating all three.
- It also was not produced as a searchable PDF document, also in violation of the ADA.
- Like many, I am red/green color blind and cannot read the small, red redaction citations against a black contrast background. I cannot read anything in 5-point font. (I had to enhance the PDF scans to recognize text, convert to MS. Word, change the font size and color, and remove the black background)
- In producing PDF Documents, Adobe software checks for ADA compliance.
- The continuing ADA violations suppressed the rights of requesters such as me under the FOIA.
In a recent similar case involving EPA, after I appealed EPA’s similar redactions that did not comport with the FOIA and Section 508 wrt font size, color, and contrast, and was not in searchable PDF format, EPA improperly closed my Appeal “moot.” Thereafter, EPA issued a revised document for the “closed” FOIA request without the Appellate Authority first granting my appeal of the non-complaint initial determination (which is an adverse action under FOIA) and then did not release the promised revised document until after the appeal closed and I complained that EPA had not released the promised revised document. If not corrected, this will result in false FOIA reporting to the Attorney General of the United States. The Appellate Authority must first grant my appeal and remand it for further response; then the Agency (EPA) must account for the processing time of the remand separately from the initial closed FOIA request. Also, there is no statutory or DOJ approved appellate determination of “moot” for FOIA Reporting to the Attorney General of the United States (and Congress via public posting) and every use of “moot” is improper. Appeals must be adjudicated based on the facts at the time of the appeal and are not made “moot” by anything that occurs thereafter. (Same for FOIA litigation; any action after being served does not render the Plaintiff’s complaint “moot.” You lose and may be assessed litigation costs.) See foiaonline.gov, EPA-2021-002817 Appeal, EPA-2021-001053 Request. See also DOJ Handbook for Annual FOIA reports (www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-of-information-act-reports.pdf/download). To be fair, EPA processed my FOIA request and appeal promptly, and I am a strong supporter of FOIAonline, which EPA developed and oversees an interagency Systems Change Configuration Bord. (In my view the gold standard for FOIA portals and case management systems)
I have provided multiple similar examples involving DOD.
DOJ's Office of Information Policy has responsibility for FOIA compliance (as does OGIS). Both are aware of this issue. DOJ could easily issue guidance to Agencies identifying this as a priority non-compliant practice requiring attention with guidance on how to correct it to improve administration of the law, to promote best practices, and to increase transparency.
- Chief FOIA Officers Council, FOIA Advisory Committee, and DOJ OIP address this matter with federal agencies in the appropriate correspondence and forums and include this Requester-Submitted issue as a Section 508 Compliance win in respective Annual Reports.
- 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 compline 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.
- OGIS & CHIEF FOIA OFFICER COUNSEL OUTREACH.
Per 5 U.S.C. §552 requirements “to consult on a regular basis with members of the public who make requests under this section,” I am seeking opportunities to participate in such consultations toward the goal of improving FOIA processes for everyone.
By return email to this submission, please advise me when these public comments have been posted for the next meeting and how I may participate in regular consultations.
With my respect,