In today's mail we received a new example that illustrates why we called the Freedom of Information Act (FOIA) "anything but an efficient and effective tool that the public can use to get timely access to government records" in our recent testimony before the Senate Judiciary Committee: a final response to a FOIA request we made to the Department of Defense (DOD) almost a year and a half ago, and that DOD had told use to expect within "a few days."
The FOIA response is a result of a project OTG launched to compare the experience using FOIAonline, the centralized web service that allows users to make and manage requests to any agency that is participating in the system, with the experience of making requests at other agencies. We stopped updating the project's blog with our responses and observations in May 2013 after we received a final response from most of the agencies.
DOD's tardy response isn't the only troubling part of our experience making a request with the agency. Briefly, here are some of our other issues:
We made our original request via DOD's online portal. The confirmation email that was automatically generated included no information about who we should contact with any questions about the request, or about how to track the request. While including such information in the confirmation email is not required by the law, it would make it much easier for the requester to follow-up on the request.
When we finally did receive a tracking number from DOD, it was included in an email telling us that our request had been classified as "complex" and that due to "unusual circumstances," would not be able to meet the 20 day response time required under the law. This response was unexpected as when we set the parameters of our project, we specifically chose a report that would be held by each agency, should be easily identifiable, and should not include any particularly sensitive information.
When we called DOD to discuss the request, we were told that the language asking us to clarify our request is standard language DOD includes in all its responses to FOIA requests. DOD seems to be taking advantage of a provision of the law that is intended to give agencies additional time to process a request if the records are stored off site, if the request is particularly large, or if DOD would have to consult with other components to process the request to free themselves from the law's 20 day deadline. On top of running contrary to the spirit, and– more importantly — the requirements of the law, this practice wastes the time of both FOIA processors and requesters.
They mailed us a copy of the report. For each of the request we filed, we requested any responsive documents be sent to us electronically. Sending records electronically saves time and money: it should be the default method for responding to FOIA requests. Yet, despite the fact all of the records we requested were almost certainly created digitally, a large portion of the records we received back were via the US mail (the State Department actually spent $16 to send the records via registered mail).
The kinds of issues discussed above are not uncommon at other agencies as well. And, unfortunately, there is no silver bullet solution for making the FOIA process work better for the public. However, one of the priorities discussed in our testimony, strengthening and empowering the Office of Government Information Services (OGIS), would help move us to a better track.
OGIS was created by Congress in 2007 to fill two roles: 1) act as a mediator, and 2) make recommendations to Congress and the President on how to improve the FOIA process. Congress also charged OGIS with the responsibility of reviewing agency compliance with the law. Having a "cop on the block," so to speak, would make it easier for requesters to bring the kinds of problems we currently see at DOD to the attention of someone who could actually do something about it. Since the office's creation, though, it has lacked the resources and authority to meet these functions.