What’s FOIA got to do with the Mueller Report?

If, like us, you’re up-to-date on current events, you’ll know the flurry that has surrounded the U.S. Department of Justice in recent days. In the wake of Special Counsel Robert Mueller handing over his report on Russian involvement in the 2016 presidential election to Attorney General William Barr, curious minds want to know: When will we see the full report? Well, it turns out, that ultimately depends on FOIA law.

What’s protected?

The Freedom of Information Act (FOIA) guarantees that all agency information is property of the People, and therefore open access. But, there are exemptions. Items that are “classified” remain private as a matter of national security, for example.

How do these exemptions dictate what of the report we actually see? FOIA expert and former co-director of the Office of Information and Privacy Dick Huff has some thoughts.

“While we don’t know exactly what is in the report, we can make some guesses based on Barr’s summary,” says Huff, emphasizing that this is all speculation. “Sources have said the report is over 300 pages, and when Barr writes a more extensive statement he said he will not include exempt material.”

Namely, this includes grand jury information, which is protected under Exemption 3, and anything which will interfere with other pending law enforcement proceedings, as protected under Exemption 7(A). There may also be some information protected on the basis of personal privacy under Exemption 7(C) as well as classified material.

“Anything in Barr’s summary should be released out of the report,” adds Huff. We will see more when ongoing law enforcement proceedings end.

But the rest? “We don’t know,” says Huff. “Grand jury info can be protected indefinitely, except in cases where time has passed and there is high historical interest. But, not within a year.”

What’s the next step?

To acquire information under FOIA law, parties must submit a request to the appropriate office. In this case, it’s the Office of Information Policy in the Department of Justice.

All you have to do, says Huff, is write a letter asking for “all materials gathered by Mueller” to get—not only the report—but the thousands of additional documents and evidence gathered in the investigation. Many groups have likely already done this. The next step is to wait 20-30 working days for the DOJ to comply. After that time period, “if the agency hasn’t responded,” says Huff, “you can file a lawsuit.”

The whole process can take anywhere from six months to a year and a half to complete. When it’s all said and done, we should be able to see any of the report that isn’t protected under exemptions in the FOIA statute.

Protections based on DOJ regulations of “confidential” information don’t hold water, notes Huff.

The future of the Mueller Report

With time, most information comes to light. Take, for example, the 1962 assassination of John F. Kennedy. Specifics on the case were eventually released in 1992, when Congress passed the John F. Kennedy Assassination Records Act.

Huff thinks the assassination records are a special case. “They passed the Act because of a movie,” he says, referring to the 1991 film, JFK. Because of high public interest, the pressure on Congress to release documents also blew up.

It’s possible we might never see the full Mueller report. It’s hard to predict if this story will stay in the public mind. But maybe, just maybe, 30 years from now public interest will pique—over a movie or some exposé—and people will start asking for answers again. And maybe then, we will finally see the full report.

This article is part of a series on FOIA law and regulations. Stay tuned for our upcoming article on how AINS can help your organization handle unexpected surges in FOIA requests.