The majority of federal agencies — including law enforcement agencies like Customs and Border Protection — are refusing to release some of the most basic guidance materials used by their Freedom of Information Act (FOIA) offices: procedures for how they do their jobs.
Government Attic, a website that regularly files FOIA requests and posts the provided records, estimates that at least 60 percent of federal agencies, when faced with filling requests for FOIA standard operating procedures (SOP), claimed that the documents are in draft form and exempt from disclosure or that they don’t have any such records at all.
FOIA is one of the key mechanisms for government transparency. EFF regularly uses FOIA and state public records laws in its work, including to learn about policy making and implementation, expose local police surveillance, and protect the public’s right to know what the government is doing.
FOIA requests are rarely processed within the 20-workday time frame required under federal law. A lot of agencies have a lot of backlog to address; the Central Intelligence Agency, for one, reports having more than 1000 requests in queue for processing. As part of the annual Chief FOIA Officer reports submitted by government agencies to the Department of Justice, agencies are supposed to offer some transparency around how the FOIA offices process requests and the work they did to try to improve their workflows. The standard operating procedures (SOPs) for FOIA offices are regularly mentioned in these reports.
In its most recent Annual FOIA Report, for example, DHS confirmed that CBP and a number of its other components have such guiding documents.
The SOPs can be a playbook for how agencies respond to FOIA requests. As the description might suggest, it’s the way that the FOIA office would standardly handle a FOIA request. In general, it’s not related to a particular law enforcement action, iit doesn’t talk about particular people, and there shouldn't be any sensitive information about confidential informants or spy techniques.
These SOPs are important for the public to access, because they are a guide to how agencies handle their requests. Being able to see them helps requesters to better understand how each different FOIA office works, allowing them to better formulate their requests and understand the environment in which they’re being processed. Multiple agencies have released some materials describing their procedures, including the Department of Veterans Affairs and the Department of the Treasury.
FOIA dictates a “presumption of disclosure” and requires agencies to apply any of the law’s nine exemptions narrowly, meaning that agencies are supposed to redact specific records, rather than withhold them in their entirety. Agencies should be applying that expectation to SOPs, not barring the public from the very materials that guide it.
In materials posted on Government Attic, the National Transportation Safety Board’s SOPs, for example, describe details of how FOIA officers should triage incoming requests, respond to requests related to foreign investigations, and go through other parts of the FOIA process. Though some sections are redacted, each of these, at least, point to the applicable exemption, usually b(4), the trade secret exemption, as a way of blocking access to the specifics of FOIAXpress, the portal agencies use to organize requests.
However, when asked for copies of these SOPs by Government Attic, Customs and Border Protection, CIA, and dozens of other agencies have withheld any responsive materials in their entirety — and used some unexpected reasons to do it.
Rather than release their procedures, CBP cited the b(6) exemption under FOIA, which generally relates to the personal privacy of an individual, often in the form of names, social security numbers, details about where a person might live, etc. In most cases when these exemptions are used, agencies are able to redact the personal information pretty easily, leaving the rest of the document available for review. CBP also claimed that the SOPs were exempt from disclosure under another FOIA exemption that prevents the disclosure of law enforcement techniques. It's unclear why CBP’s FOIA manual would include investigative techniques — unless it's claiming that processing FOIAs in and of itself is a law enforcement technique. It’s also hard to believe that any such techniques are so pervasive as to require withholding the entire manual, rather than redacting specific pages.
The disparity when it comes to releasing the SOPs highlights the variance that exists across FOIA offices when it comes to processing all types of requests. The FOIA process can feel confusingly opaque to requesters. Unfortunately, for many agencies, keeping it that way seems to be their SOP.