Commitment Analysis: Devil in the Details with New Commitments to Improve FOIA

The following analysis was written by OpenTheGovernment.org.

On December 8, the Administration committed to taking a series of concrete steps in the next two years with the goal of improving implementation of the Freedom of Information Act (FOIA). The steps include: creating a consolidated online FOIA service; developing common FOIA regulations; scaling up targeted efforts to make processing requests more efficient (sharing best practices); establishing a FOIA Modernization Advisory Committee; and improving FOIA training. If the government meets these commitments, will it actually be any easier for the public to ask for and receive government information?

When the new FOIA commitments were included in the preview the US released during the meeting of the Open Government Partnership (OGP) in London, we said that [the commitments] "show that the government can work with civil society to create a realistic plan to increase openness and accountability." The commitments are all things that the Administration can accomplish in the next two years. Furthermore, they are much more in line with civil society's expectations for ambitious commitments compared to the FOIA commitments the Administration made when the OGP launched in 2011. It is particularly notable that the commitments reflect components of the plan drafted by civil society that we helped coordinate, including giving requesters a centralized location to make requests and creating an advisory committee to make sure outside stakeholders and the government have a venue to continue working together.

If executed properly, these commitments could go a long way towards standardizing and making it easier for requesters to comprehend this highly bureaucratized and often-confusing process. A blog we ran last year helped to highlight how different requester experiences can be — some agencies require you to make all requests through their online forms, others accept emails; some agencies respond via email, others pay high fees to send responsive documents via registered mail.  A centralized portal, modeled – we hope—after the FOIAonline system used the Environmental Protection Agency (EPA), Commerce, the National Archives and Records Administration (NARA) and a few other agencies, would make it much easier to make requests and track requests and — if FOIA processors are trained on how to effectively use the system — would make it so that any document that has already been processed and released is readily available to the public. A common FOIA regulation (if possible) would reduce the variability in appeals deadlines and other requirements. High quality training for FOIA personnel would also help make sure agency FOIA processors are following the Attorney General's guidelines regarding the presumption of openness and proactive dissemination and applying exemptions appropriately.

As our friends at the Sunlight Foundation have thoroughly explained, however, better experiences for FOIA requesters depend on how the government goes about meeting the commitments. In fact, the government could meet all of its commitments and in some important ways the process could be worse for requesters. It would be a step backwards were the Administration to standardize — in a common FOIA regulation or as a "best practice” such practices as giving requesters a short time period to file appeals, or granting them only a few days to let the agency know they still want the information before closing out an old request. These practices may increase efficiency from an agency's point of view; they help the agency close cases and reduce their backlog. They are, however, deeply unfair to requesters who have patiently waited (sometimes for years) for the agency to get to their request.

To make sure the commitments lead to the kind of improvements we all want to see happen, civil society organizations must continue to engage Administration and agency officials. And there are signs that we can and will continue to work together to this goal: in mid-November there was a very productive meeting during which representatives of civil society organizations talked with Administration and agency officials about our recommendations for carrying out the commitments. We will continue to work with the Administration and agencies on implementation of the commitments and monitor and evaluate the Administration's efforts over the coming years.

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