This was really interesting. I’ve been involved in a couple of FOIA processes on the nonprofit side - once in prep for potential litigation, and once in a direct FOIA suit against the USDA for failing to timely release records. I’ve long thought someone could create a lucrative practice based solely on FOIA litigation on behalf of nonprofits. (These may exist in DC or the like, but my legal network is unaware of anyone with such a practice on the west coast.)
They’d have to be pro bono, but the cases are straightforward and could be handled by newer lawyers; the plaintiff’s burden is simple and the big wrangling (at least in my field) is about release schedules and redactions. These take time of course, and fees are typically awarded.
On the other hand, I am well aware that agency budgets for their actual work (like doing science or human services, etc.) are often drained by these types of payouts for litigation expenses (and don’t agencies have to “pay” DOJ for a defense too?). I want our federal agencies to be able to provide the services they were established for, so I can hope that this LLM model being trialled might provide a way forward. (And it sounds like there will be a backlog of old FOIA requests for years to come to keep any FOIA litigators in business.)
I've had some crazy ideas along the same lines. In WA it's even easier because under state law there are statutory damages alongside the fee shifting provisions. Conceivably, the state law claims could keep the lights on while one could wait on a federal district court to bill out at the presumed rate.
Anecdotally, I don't know of any law firms like that either.
Anecdotally, I've talked to a few attorneys who have at least thought about suing the City of Seattle for allegedly (or not so allegedly) failing to do our part in responding to their requests. Speaking very generically and about no one in particular, criminal defense and immigration attorneys are the ones I talk to the most. And yet even when there's fairly large settlements, they don't seem too keen on making that their practice.
I found it surprising because like you when I think of demand for services, shouldn't there be someone who offers to NGOs or has a public purpose?
For my very hot take, I worked as a Senior FOIA Analyst / Attorney for a big government contractor. For over a year I was brought in to help the FAA with 737 MAX crash records. Another was Superfund sites here in Seattle. My .02 is that as bad as agency budgets are, the grim reality is that if NGOs don't get money then nothing will change. The agency won't improve without tangible penalties. A judgment will take from the mission, but at the same time the mission isn't going to get any better executed without real feedback.
"FOIA is a booming business" - this is heartening. I'm less enthusiastic about the AI element but I suppose time will tell. Very interesting as usual. Thanks, Max.
This is interesting (and is it me because the entire "hush/hush" nature of MITRE doesn't align with anything being freely informative). And, can we label either pilot program a "success" - what is the metric for either the prior or existing pilot programs, and who was charged with making those determinations?
MITRE certainly doesn't fit with information being freely informative. Ultimately, they are private and aren't subject to FOIA requests. The dynamic is a little too cozy for some critics, especially those who think federally funded research should be presumptively public.
Even when their data ends up at federal agencies, for public disclosure the government would have to inform MITRE (or whoever submitted the data) of a determination that all or part of the submission is not proprietary. Point being, the determination gives the company submitter a chance to file a lawsuit to stop disclosure—referred to as a “reverse FOIA” case. If FOIA is a niche, a "reverse FOIA" dynamic is a niche to a niche haha
As far as the metrics, I found very little to go on. One of the slides makes references to "lessons learned," and a few slides used the previous declassification pilot to talk about these lessons -- such as bad data in bad data out and other obvious cliches.
I assume that means they don't have any very solid metrics in place, and what they think success looks like is sup to the vibes from the State Department's first line document reviewers.
Though I'd love to be proven wrong! I really hope they have some real black and white metrics here.
This was really interesting. I’ve been involved in a couple of FOIA processes on the nonprofit side - once in prep for potential litigation, and once in a direct FOIA suit against the USDA for failing to timely release records. I’ve long thought someone could create a lucrative practice based solely on FOIA litigation on behalf of nonprofits. (These may exist in DC or the like, but my legal network is unaware of anyone with such a practice on the west coast.)
They’d have to be pro bono, but the cases are straightforward and could be handled by newer lawyers; the plaintiff’s burden is simple and the big wrangling (at least in my field) is about release schedules and redactions. These take time of course, and fees are typically awarded.
On the other hand, I am well aware that agency budgets for their actual work (like doing science or human services, etc.) are often drained by these types of payouts for litigation expenses (and don’t agencies have to “pay” DOJ for a defense too?). I want our federal agencies to be able to provide the services they were established for, so I can hope that this LLM model being trialled might provide a way forward. (And it sounds like there will be a backlog of old FOIA requests for years to come to keep any FOIA litigators in business.)
I've had some crazy ideas along the same lines. In WA it's even easier because under state law there are statutory damages alongside the fee shifting provisions. Conceivably, the state law claims could keep the lights on while one could wait on a federal district court to bill out at the presumed rate.
Anecdotally, I don't know of any law firms like that either.
Anecdotally, I've talked to a few attorneys who have at least thought about suing the City of Seattle for allegedly (or not so allegedly) failing to do our part in responding to their requests. Speaking very generically and about no one in particular, criminal defense and immigration attorneys are the ones I talk to the most. And yet even when there's fairly large settlements, they don't seem too keen on making that their practice.
I found it surprising because like you when I think of demand for services, shouldn't there be someone who offers to NGOs or has a public purpose?
For my very hot take, I worked as a Senior FOIA Analyst / Attorney for a big government contractor. For over a year I was brought in to help the FAA with 737 MAX crash records. Another was Superfund sites here in Seattle. My .02 is that as bad as agency budgets are, the grim reality is that if NGOs don't get money then nothing will change. The agency won't improve without tangible penalties. A judgment will take from the mission, but at the same time the mission isn't going to get any better executed without real feedback.
"FOIA is a booming business" - this is heartening. I'm less enthusiastic about the AI element but I suppose time will tell. Very interesting as usual. Thanks, Max.
This is interesting (and is it me because the entire "hush/hush" nature of MITRE doesn't align with anything being freely informative). And, can we label either pilot program a "success" - what is the metric for either the prior or existing pilot programs, and who was charged with making those determinations?
MITRE certainly doesn't fit with information being freely informative. Ultimately, they are private and aren't subject to FOIA requests. The dynamic is a little too cozy for some critics, especially those who think federally funded research should be presumptively public.
Even when their data ends up at federal agencies, for public disclosure the government would have to inform MITRE (or whoever submitted the data) of a determination that all or part of the submission is not proprietary. Point being, the determination gives the company submitter a chance to file a lawsuit to stop disclosure—referred to as a “reverse FOIA” case. If FOIA is a niche, a "reverse FOIA" dynamic is a niche to a niche haha
As far as the metrics, I found very little to go on. One of the slides makes references to "lessons learned," and a few slides used the previous declassification pilot to talk about these lessons -- such as bad data in bad data out and other obvious cliches.
I assume that means they don't have any very solid metrics in place, and what they think success looks like is sup to the vibes from the State Department's first line document reviewers.
Though I'd love to be proven wrong! I really hope they have some real black and white metrics here.
It’s a niche to a niche staffed by people who technically are not required to do anything (it’s literally M.A.S.H., except it’s not scripted)!