Apologies to @dennisclang, @AlexHortonTX, @gunita_singh and @MikeStucka who responded to this tweet, but I didn't end up using your examples in my latest appeal, which I finally finished and filed this week.

Here it is, if you're interested: https://www.dropbox.com/s/a4i200rz5712u6f/AppealForTwitter.pdf?dl=0 https://twitter.com/chadgarland/status/1317266882865614849

I've spent several years at S&S getting FOIA denials for the reasons described in the appeal, citing this memo that claims the FOIA prohibits federal agencies from submitting requests.

https://open.defense.gov/Portals/23/Documents/starstrp.pdf

It's a common frustration: https://www.stripes.com/opinion/ombudsman/stars-and-stripes-can-t-invoke-foia-but-it-can-get-around-that-limitation-1.415847

I don't believe DOD's interpretation of FOIA is right. I'd be surprised that Congress passed a law granting the general public rights to access records but meant to bar government agencies themselves from accessing the same records. Indeed, SCOTUS has said as much (highlighted).

If the GENERAL PUBLIC can access a record under FOIA, it seems it would stand to reason that a federal agency could access the same record under FOIA. And why push S&S reporters to use some other process from our commercial peers when we seek records for the same purpose?

And, frankly, the law and Executive Orders require FOIA offices to administer the act with a spirit of openness and maximum discretionary release. Even if S&S reporters can't technically use FOIA, DOD would still have discretion to release records they request under the Act.

Moreover, the Department of Justice's FOIA Counselor said in FOIA Update, Vol. VI, No. 1, of January 1, 1985 that a request from a federal employee "would be a request from a 'person'" (not an agency) and would satisfy the Act's technical requirements. So. https://www.justice.gov/oip/blog/foia-update-foia-counselor-questions-answers-15

In other words, DOD's FOIA memo pointedly requiring denial of S&S reporter requests boils down use (abuse?) of a gray area/technicality, it seems to me. Official often tell us to to file an "agency-to-agency request," which near as I can tell is not 'a thing.'

(Except if we're talking about a Privacy Act request, which my research indicates requires that the receiving agency use requested records for the purpose they were originally created, which is almost never how S&S seeks to use records.)

Anyway, as I became increasingly frustrated by what seems to me a clear attempt at de facto censorship of S&S by withholding records and giving reporters the run around, I have spent a lot of free time and a fair amount of work time researching the Act and case law.

DOD's Office of Information Policy FOIA Guide has been a huge resource. https://www.justice.gov/oip/doj-guide-freedom-information-act-0

But in February, when DOD decided it was going to defund Stars and Stripes, a couple of things clicked for me:
1. I shouldn't making requests "on behalf of" S&S (not that I ever explicitly was) bc I may want to use them elsewhere. That is, *I* want the records personally.

2. That if I'm seeking them on my own behalf and using my own email address, I can't be consider "a representative" of S&S or any other federal agency.
3. That, as I can moonlight for $ (with permission), and share directly to y'all here for free on my own time...

3. ...that I can and will want to use FOIA records for myself, whether or not S&S continues to exist.
4. And lastly, that doing so would be a good test of whether FOIA offices were honestly & accurately applying the DOD memo's guidance.

My first test of this came with a FOIA earlier this year that was denied on the basis that I am S&S personnel, clearly misapplying/overstating the DOD memo's guidance. I appealed & the requests were remanded to the agency for further processing.

I again tested this theory with several FOIA requests submitted to OSD from my private email on my own personal time a few months go. Several were initially denied on the typical grounds that I'm an S&S employee and ineligible to FOIA.

But in those three cases, I emailed the administrators to ask how they found my requests were submitted "on behalf of" S&S when I never mentioned the paper, used a personal email address & off-duty time. They eventually just reopened the requests, no appeal required.

The appeal way above represents the 5th through 11th denials of my personal requests by superficially and incidentally connecting them to S&S, though S&S had no part in the requests and I made them in my private time. I tried just emailing CENTCOM; they didn't budge.

So, I spent many evenings writing and rewriting that appeal into the wee hours of the night. We'll see what happens next.

But I should note that several other FOIA offices (NCIS, Navy & Army recruiting, DODIG, Army CID and HQMC) appear not to have jumped to flawed conclusions.

Since August, I've submitted about 45 FOIA requests. Most are still open (1 redirected & closed, 1 produced records, 7 closed & appealed). HQMC did ask on whose behalf I was seeking the records, which worries me a little bit, but so far it has not denied my requests.

I'm now working on a request to the FOIA public liaison for DOD that will ask that the official issue revised guidance clarifying that a federal employee who seeks records on their free time from their private address and without explicitly representing an agency HAS FOIA RIGHTS.

And I continue to file FOIAs to test the system. So FOIA offices should be aware that, while I genuinely want the records I seek, I'm also eager to have the requests denied so I can appeal the denial and amass more and more victorious appeals.

Basically, I hope to blaze a path here, because I believe S&S reporters who seek records under FOIA aren't seeking them "on behalf of" the federal gov't, but for ourselves as reports & our audience -- IOW, precisely those the Act was designed to give access to.

cc: @Rose_Lori @CDicksteinDC @StevenBeynon @caitlinmkenney @JpLawrence3 @sethrobson1 @nikkiwentling