Anyone walking out of the Department of Justice's (DOJ) Sunshine Week celebration on March 11 with no previous exposure to the FOIA system would have thought the process is working better for requesters than ever. Records are released 94% of the time; backlogs are down; agencies are using technology to help them process requests faster. These happy stories do not represent the reality for many requesters, however.
We know from experience, and from our other friends in the requester community, that the FOIA process remains as difficult, clunky, and inefficient as it was under the previous Administration. Some agencies have even made it harder for requester to get government information: relying on an overly narrow definition of perfected requests and improperly denying fee waiver requests.
Why the disconnect between DOJ's cheery reports and the on the ground experience of requesters? One reason is that the DOJ section with responsibility for FOIA, the Office of Information Policy, does not view itself as an oversight office. DOJ's Office of Information Policy (OIP) has responsibility for providing government-wide guidance on the implementation of the FOIA. It does not view itself as responsible for helping ensure agencies are faithfully meeting their obligation to respond to public requests for information. As a result, OIP acts more a cheerleader celebrating every time an agency does something right than as the schoolmarm making sure all of the agencies did their homework.
A look behind some of the numbers and stories presented at the DOJ celebration shows how OIP acts as a cheerleader, and the very real negative consequences it has for requesters:
Let's start with the claim that the federal government released records in response to 94% of FOIA requesters in the last year. The validity of this claim was brought into question by testimony from Tom Blanton at the National Security Archive during the Senate Judiciary Committee hearing. As Mr. Blanton pointed out, to get to that statistic, OIP had to exclude "9 of the 11 reasons" agencies do not hand over records to requesters. Among the cases left out are those where requesters and the agency could not agree on fee issues, where agencies reported that they had no responsive records, and where the agency referred the request to another entity. According to Mr. Blanton's estimates, once all of the reasons requesters leave the FOIA process unsatisfied are taken into account the release rate is more likely around 55 – 60%.
Moving on to declining backlogs, it is true that backlogs across the government have gone down in recent years. However, backlogs remain a serious barrier to requesters receiving prompt responses to FOIA requests. As a recent report from the Center for Effective Government (formerly OMB Watch) pointed out, despite a requirement in the Obama Administration's Open Government Directive for agencies with a significant backlog of requests to reduce the backlog by 10% per year, only two agencies met the percent reduction goal each year.
Furthermore, some agencies that made significant improvements to their backlog did so in ways that are, to put it mildly, not in the best interest of requesters. The agency that DOJ invited to the Sunshine Week celebration to talk about their success in reducing the backlog, for example, cleared out much of its backlog by sending out notices to requesters with old requests informing them that if they did not contact the agency to say they were still interested in the information, the request would be automatically closed. Over the last few years requesters have watched agencies brag about major backlog reductions when the agency simply went through the backlog to refer out any request where another agency would be likely to have responsive records — for requesters, this kind of backlog reduction does not mean that you will get your records any faster, it just puts you in some other agency's line.
And finally, the use of technology. Notably, the agency invited to the DOJ celebration to talk about its use of technology to improve FOIA processing described how just a few years earlier FOIA personnel were having to create all sorts of work-arounds because the agency's email and FOIA processing software were not compatible. Requesters are undoubtedly benefitting from this agency finally addressing the problem head on, but it is probably not a stretch to say that other agencies are continuing to rely on inefficient work-arounds to technological issues.
Indeed, a major source of frustration for many in the requester community has been OIP and the White House's failure to date to publicly support FOIAonline, the shared service model of FOIA processing developed by the Environmental Protection Agency (EPA). If adopted government-wide, requesters could log on to the system to easily make requests and track requests anywhere in the federal government and receive responsive documents. Because the government would be using the same system to process requests, they could be easily referred or sent out for consultation — a major source of delay in the current system. FOIAonline has been projected to save as much as $200 million over the next five years based on government-wide adoption. (Learn more about the benefits of the service here).
The federal FOIA system would certainly benefit from some measure of oversight from the Executive branch. A lack of oversight explains part of the reason that requesters are not seeing any change as a result of strong pro-access FOIA policies put forward by the President and the Attorney General. In order for these policies to make a difference in the way FOIA processors do their job, they must be written into the agency's FOIA regulations. A recent audit by the National Security Archive found that about 60% of agencies had not updated their regulations since Attorney General Holder released his guidelines (moreover, a clear majority had not updated them since Congress amended the law in 2007). As OIP testified before the Senate Judiciary Committee, OIP did not tell agencies they were under any obligation to update their regulations.
Recent hearings in the House Oversight and Government Reform Committee and the afore-mentioned Senate Judiciary Committee, along with an excellent letter from the Chair and Ranking Member of the House Oversight and Government Reform Committee to the head of OIP, show Congress has an appetite for doing what it can to make sure the FOIA process actually works for the public — but it is one of many issues on Congress' plate. As other open government advocates have pointed out, though, OIP may not be well placed to act as an oversight office: as the part of the agency that defends agency FOIA withholdings in court, it might have a conflict of interest. Many in the open government community would like the Office of Government Information Services (OGIS) at the National Archives and Records Administration (NARA) to take on an oversight function. Currently, however, with a staff of 7 and a relatively small budget, OGIS lacks the resources to tackle this assignment.
Earlier this year our Executive Director called on the President to recommit to open government. The Obama Administration has expended an enormous amount of staff time and attention to putting forward policies that are intended to make the federal government more open and accountable. If the President wants to secure his legacy as one who ushered in "unprecedented levels of openness in Government," the White House must begin to pay greater attention to how agencies are responding and put in place processes to ensure their compliance with his directives.