Peter Broida's Comments to MSPB Vice Chairman Mark Robbins on MSPB FOIA Procedures — April 28, 2017
Peter B. Broida

Attorney at Law
1840 Wilson Blvd Suite 203
Arlington, VA 22201
Fax: 703-841-1006

Peter Broida's Comments to MSPB Vice Chairman Mark Robbins on MSPB FOIA Procedures
April 28, 2017

Dear Mark,

I hope things are going well with you during what I know is an uncertain period of transition. I look forward to the appointment of another member so that the Board has a chance of producing timely decisions in the foreseeable future. I can recall when the federal sector EEO program was first set up and there were discussions at EEOC about how to deal with the backlog EEOC was inheriting from the Civil Service Commission, while at the same time keeping relatively current with incoming appeals. That led to the "3 inch rule": if the case file was that size or less, the case must be reasonably simple and so could be decided quickly (with a helpful boost in statistics). I am not so sure that would work in the digital age (could you measure the complexity of an appeal on PFR by the number of MB in the digital file?).

Anyway, I have been watching with interest and some detachment the responses you've so kindly been providing on my many appeals from untimely FOIA dispositions at the initial request stage. And I have been dealing with MSPB on FOIA requests for some years.

The system is broken, or so unwieldy and slow that it is useless to requesters with but finite time and patience. With your permission, I make a couple suggestions.

Scrap the current internet-based server system. Set up a simple e-mail based FOIA request system that goes directly to the Board and cut out the middleman. Set up a response system that assigns a tracking number and provides the name and telephone number of a point of contact (the name of someone) at the Board. Establish a FOIA unit of a couple attorneys who process the requests, and assign an attorney from OAC to prepare responses to appeals for review by the Board's Chair (or whoever is designated to decide appeals).

And most important, process these requests on time rather than spending time sending out notices that the cases are being processed or that additional time is being granted to process the requests. Of course, there will be the exceptional request that demands more time. But that should not be the routine. Board performance standards for AJs and OAC attorneys establish fairly rigid deadlines for case processing, with flexibilities. The same can be done for counsel in a FOIA unit. From the 2015 FOIA report (the most recent report does not seem to include statistics), it looks as though the Board gets about 200 FOIA requests a year, about five a week or less. Surely two attorneys in a FOIA unit could process that workload reasonably quickly, allowing, again, for exceptional requests.

I am also concerned about the manner in which the Board is applying exemptions, but that is a matter for either a district court, external review through congressional oversight, or, perhaps, the government unit at, I believe, NARA, that offers itself as something of an ombudsman before people file their lawsuits. My concern here is the unusual delays I see in the Board's treatment of fairly routine requests and what appears to be an unnecessarily elaborate, and less than intuitive, means for making, appealing, and reviewing the results of FOIA requests.

If my remarks are useful, I am pleased to have offered them.

With best regards,