1875 Eye Street, NW, Suite 800, Washington, DC 20006

August 10, 2016

VIA E-MAIL
Shaun L.S. Donovan
Director
Office of Management and Budget
The White House
725 17th Street, NW
Washington, DC 20503
ombdirector@omb.eop.gov
Melanie Ann Pustay
Director
Office of Information Policy
U.S. Department of Justice
1425 New York Avenue, NW, Ste 11050
Washington, DC 20530
C/O: ReleaseToAll@usdoj.gov
Re:

Release to One, Release to All

Dear Directors Donovan and Pustay:

I write on behalf of Cause of Action Institute (CoA Institute), a non-profit government
accountability organization that is committed to ensuring the federal regulatory process is open,
honest, and fair.1 CoA Institute uses investigative tools to research federal government waste, fraud,
and mismanagement, as well as overreach in the form of arbitrary and burdensome regulations. We
employ sunshine advocacy tools, including document requests, lawsuits, ethics complaints, and
requests for investigation to promote transparency, integrity, and accountability in government.
CoA Institute is also a frequent requester of information under the Freedom of Information Act
(FOIA), where it is regularly categorized as a representative of the news media for fee purposes.

See CAUSE OF ACTION INST., About, http://causeofaction.org/about (last visited Aug. 10, 2016).

Directors Donovan and Pustay

August 10, 2016
Page 2
We are encouraged by the recent announcement that the Department of Justice Office of
Information Policy (OIP) has completed its pilot program2 to assess the viability of implementing
the release to one, release to all FOIA policy across the Executive Branch.3 We are writing to
recommend that your offices consider three additional matters, as set forth below, when formulating
official guidance in this area.
Exceptions to the Policy
The release to one, release to all policy recognizes that proactive disclosure of records is
appropriate because when an agency produces records under FOIA, it has reviewed those records for
release to the public and not just the requester. Proactive disclosure of records may reduce the need
for use of FOIA to access information in the first place and thus lessen the burden on FOIA offices
throughout the federal government. In its assessment of the pilot program, OIP identified three
categories of information that may be excepted from the policy.
First, OIP recognized that [f]irst-party requests, i.e., requests submitted by or on behalf of
individuals asking for their own records were not [appropriate for release under this policy]. Such
records are not generally released to anyone other than the requester because to do so would invade
the requesters privacy.4 CoA Institute recognizes the need for this privacy exception and agrees
that these productions should not be posted on agency websites.
Second, OIP found that agencies will encounter other examples of records that are not
necessarily appropriate for posting, such as the car accident video example provided by [the National
Archives and Records Administration].5 CoA Institute agrees that there may be instances when a
record released to a requester may be inappropriate to host on an agency website. However, we are
concerned that, without OIP and Office of Management and Budget (OMB) providing specific
guidance to agencies on which types of documents are inappropriate to post, this exception could
undermine the entire policy.
For example, an agency might apply this exception to protect the agency mission, agency
head, administration generally, or the President from the political fallout of an embarrassing release.
CoA Institute is currently investigating the role of the White House in screening the release of
information under FOIA.6 Interference by political staff has been a problem for agencies in the
See Office of Info. Policy, Dept of Justice, Proactive Disclosure Pilot Assessment (2016) [hereinafter PILOT
ASSESSMENT], available at http://coainst.org/2atwGhM.
3 See Press Release, The White House, Fact Sheet: New Steps Toward Ensuring Openness and Transparency in
Government (June 20, 2016), available at http://coainst.org/2ayAo7K. (The President is directing the newly
established Chief FOIA Officers Council to consider the lessons learned from the DOJ pilot program and work to
develop a Federal Government policy establishing a release to one is a release to all presumptive standard for
Federal agencies when releasing records under FOIA. The Chief FOIA Officers Council will examine issues
critical to this policys implementation . . . . By January 1, 2017, the Chief FOIA Officers Council will work with
the Office of Management and Budget (OMB) to provide further guidance as it relates to this presumption.).
4 PILOT ASSESSMENT, supra note 2, at 4.
5 Id. at 16.
6 See Press Release, CoA Inst., Cause of Action Institute Sues to Stop White House Obstruction of the Free of
Information Act (May 9, 2016), available at http://coainst.org/2aAtmT1; Compl. 3, Cause of Action Inst. v.
Eggelston, No. 16-871 (D.D.C. filed May 9, 2016) (Agencies . . . seek White House approval before producing
even innocuous documents because such documents may mention the White House, or refer to a meeting or
communication that occurred there. Agencies also seek White House permission to produce documents that the
2

Directors Donovan and Pustay

August 10, 2016
Page 3
past,7 and this exception from release to one, release to all is another area where political
interference could lead to an abuse of discretion. To prevent agencies from omitting embarrassing,
inculpatory, or politically sensitive materials from the policy, we urge OIP and OMB to provide
expressly delineated categories of information that fall within this exception (e.g., productions that
contain graphic, lewd, or profane materials).
Third, OIP recognized that an agency determined it was not practical to post electronically
fillable documents because there would have been a substantial level of effort required to get them
compliant with Section 508.8 Agencies have long cited compliance with Section 508 of the
Rehabilitation Act as a reason why they cannot proactively disclose information to the public; we do
not doubt that such reliance is, at times, legitimate. Nevertheless, the existence of this exception
provides a convenient excuse for agencies to avoid posting information, even when overcoming the
Section 508 compliance hurdle could be accomplished with minor effort. CoA Institute urges that
final guidance on release to one, release to all minimize the ability for agencies to cite Section 508
as a reason to except certain classes of records from posting on their website.
We also recommend that your guidance contemplate an accounting mechanism to track the
use of available exceptions. For example, guidance could direct agencies to include a short notice in
their FOIA reading rooms describing that they have released records in response to a particular
request but, for the reason described, the records are not posted on the website. You should also
consider guidance that directs agencies to include language in final determination letters they issue
to requesters that states the production (or certain documents in the production) will not be posted on
the agency website. Finally, to the extent OMB and OIP believe release to one, release to all
compliance should become part of agencies annual FOIA reports, it would be helpful to direct
agencies to include a section discussing which records or types of records were not posted online.
Including such information in annual FOIA reports would allow OIP, the Office of Government
Information Services, Congress, and the public to track agencies use of exceptions.
Final Determination Letters
One question that remains unanswered in the pilot assessment is whether OIP and OMB will
direct agencies to post additional materials along with the documents produced to the requester.
CoA Institute recommends that agencies include the final determination letter that accompanied the
document production in such postings. Final determination letters include a description of any
invoked FOIA exemptions and sometimes also outline the search process and the context of an
underlying FOIA request. The absence of the final determination letter would leave the public
guessing at these elements and thus decrease the informational value of the postings. Final
determination letters are usually bundled with a production when the agency sends the documents to
the requester and thus this recommendation would not increase agency workload. OIP and OMB
should also consider directing agencies to post the original request along with the final determination
letter and the produced documents, as this too would increase the productions informational value.
administration may consider politically sensitive and/or potentially embarrassing.), available at
http://coainst.org/2autFum.
7 See, e.g., STAFF OF H. COMM. ON OVERSIGHT & GOVT REFORM, 112TH CONG., A NEW ERA OF OPENNESS? HOW
AND WHY POLITICAL STAFF AT DHS INTERFERED WITH THE FOIA PROCESS (Comm. Print 2011), available at
http://coainst.org/2ausVFL.
8 PILOT ASSESSMENT, supra note 2, at 16; see also id. at 4 n.1 (describing the technical requirements of Section
508).

Directors Donovan and Pustay

August 10, 2016
Page 4
Recognizing Incentives to Maximize Public Disclosure
Perhaps the most significant objection from FOIA requesters to release to one, release to
all is the potential for it to undermine the incentives of the FOIA community to request documents.
This objection has been raised by journalists who fear that the simultaneous posting of records will
allow parasitic reviewers to scoop their stories and undercut the hard work they have put into a
request. CoA Institute sympathizes with this position because our investigators also spend a great
deal of time, money, and energy crafting, monitoring, and litigating our requests. However, because
we believe that, on balance, the policy will be good for the FOIA process, we recommend that the
policy be implemented, albeit with a short delay in posting the information as an accommodation to
meet these concerns.
CoA Institute firmly believes in advancing government transparency at every opportunity. In
a free market economy, incentives drive competitors to make and develop the best quality products
for consumers. Likewise, in the transparency community, the incentive of being the first to release a
document or develop high-quality media products motivates requesters to send and pursue useful
FOIA requests. Immediately publishing all FOIA productions online could hurt transparency by
removing the impetus for these requesters to be first on the scene.
If mitigation of the potential disincentive that may be created by this policy would be
advised, we recommend agencies wait no more than a one month between releasing records to the
requester and posting them online. This delay should the same for all requesters and not an
accommodation only for journalists or those who request the delay. A uniform policy on the timing
of the postings also will help ensure a fair, unbiased, and transparent implementation of the policy.
Conclusion
Thank you for your attention to these recommendations and for your leadership on this
matter. If you have any questions about this comment, please feel free to contact me by e-mail at
james.valvo@causeofaction.org or by telephone at (202) 417-3576.

______________________
R. JAMES VALVO, III
COUNSEL & SENIOR POLICY ADVISOR