Today we present an interview with Allan Blutstein, Senior Vice President at America Rising Political Action Committee and a member of the 2020-2022 FOIA Advisory Committee. This is part of a series of posts on the Committee, whose members are FOIA experts from inside and outside of government and who are appointed by the Archivist of the United States.
Why did you seek to serve on the FOIA Advisory Committee?
Good question, because as Groucho Marx once said, I generally do not want to belong to any club that will accept me as a member. In all seriousness, I echo the sentiments of current and former Committee members who have noted the Committee’s mission, the collaborative nature of the Committee’s work, and affection for the FOIA as inspiring their applications. Perhaps unlike many members, however, I was not an early supporter of the Office of Government Information Services when it was first proposed in 2007. At that time I was working at DOJ, which was sufficiently concerned about losing certain aspects of its FOIA turf that it tried to starve OGIS of its funding. Not that I had anything to do with that, but I feel as if I am making amends now.
What do you hope to accomplish?
The Committee has covered a lot of ground over the past six years, issuing a remarkable 22 recommendations in the past term alone. Nevertheless, there has been no shortage of ideas on topics to explore this term and I look forward to evaluating them and engaging in a healthy debate. I do not have a specific goal in mind other than to focus on the work; the results will take care of themselves.
What is FOIA’s biggest challenge?
A familiar refrain is that FOIA is “broken.” It would be difficult to dispute, for example, that a significant number of requests are gathering dust in agency backlogs. Is the structure of the statute to blame or does the fault lay with a lack of agency resources or both? I suspect both. The statute itself is decidedly requester-friendly. Requesters may file unlimited requests that need only reasonably describe the records sought; lawsuits are permitted after a mere 20/30 business days regardless of the volume of records involved; untimely responses relieve most requesters of any fee obligations; and now even exempt records cannot be withheld unless agencies meet a nebulous foreseeable harm requirement. That’s a tough hand for agencies to play and I confess that I am glad to be on the other side of the table now. Having said that, the Committee’s very own Dr. A. Jay Wagner makes a strong case in a 2017 study that agencies spend too little on FOIA administration and that the statute should require earmarked funding. If you believe FOIA is “essential” and not an “extravagance,” to borrow Dr. Wagner’s terms, that policy position makes a lot of sense.
Tell us about your favorite FOIA moment.
During my time as a government attorney, I particularly enjoyed reviewing informant files, getting through the last day of the fiscal year, and watching the dynamic duo of Richard Huff and Daniel Metcalfe in front of an audience. I can’t really pick out one “favorite” moment, but I’ll never forget getting lost in the FBI Headquarters building. I later learned that the lack of intelligible hallway signs was intentional (so as to confuse intruders), which made me feel slightly less embarrassed. As a requester, I’d rank these two award-winning moments as favorites: (1) receiving the unredacted personnel file and SF-86 of a former Postal employee running for Congress; and (2) getting fan mail from a random federal prisoner, courtesy of DOJ misaddressing its acknowledgment of my request. However frustrating FOIA requesting might be, unpredictable agency responses such as these are an elixir.