Justice’s Opportunities to Make FOIA Work Better for the Public

After our recent meeting with the Department of Justice (DOJ) to discuss the open government community's ideas for how to make the department more open and accountable, the Associate Attorney General, Tony West, invited us to speak with DOJ's FOIA Council. The Council is a group of agency officials from all of DOJ's components that meet on a quarterly basis to discuss how they can improve DOJ's processing of FOIA requests.

For those of you who are not familiar with the ins and outs of the federal government's FOIA system, each agency is responsible for processing requests from the public for the agency's information. The law gives DOJ the extra responsibility of providing guidance to the agencies on how FOIA should be implemented, and requires agencies to report FOIA statistics to DOJ on an annual basis.

Given DOJ's central role in FOIA administration, we believe that Justice is well-placed to take on issues that have long-plagued efforts to open the government. Below are our suggestions for how DOJ can step up to the plate to improve the FOIA process, and provide greater clarity into FOIA administration:

Make Openness the Default in Application of Exemption 5

Despite good policies and guidance on applying the presumption of openness, requests for releasable information are commonly denied on the basis of Exemption 5. In order to make it clear that Attorney General Holder’s guidelines are being implemented by FOIA processors, Justice should develop and implement concrete methods to make sure that records are not withheld merely because Justice can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”

Suggested efforts:

• Provide FOIA processors with a check-list of circumstances that indicate a document should not be withheld. For example, the document should suggest that records older than twelve years, from a higher-level agency employee to lower-level agency employee, etc, should be released.
• Prior to citing attorney-client privileges, Justice should consult with the client to see if the record can be released.

Improve Reporting

Agencies dedicate considerable resources to compiling annual FOIA statistics. However, many of these statistics lack the granularity necessary to help the Office of Information Policy, FOIA managers, and the public to understand where there might be particular issues in the FOIA process.

Suggested efforts:

• Report the particular privilege claimed under Exemption 5.
• Pilot new reporting on partial releases that makes it easier to understand the volume or material released under the FOIA. One possible approach is to report on the number of lines released and withheld.

Investigate the Fee System

Fees continue to be a major source of contention between agencies and FOIA requesters. We also lack sufficient information about the source and use of fees to understand the effect they have on the FOIA system, or if agencies are following the law.

Suggested efforts:

• Collect information that allows outsiders and FOIA managers to understand how fee categories and what particular activity (search, duplication, etc) contribute to the amount of fees collected.
• Report on whether fees are collected after an agency exceeds the response deadline for requests where the agency faces “unusual circumstances.”

Provide Information on the Cost of Litigation

Information on the costs of litigation would make it easier for FOIA managers and the public to understand how much FOIA litigation costs the government, and improve efforts to increase mediation.

Suggested effort:

• Provide information about how much litigation costs the agency, including the award of any attorney’s fees.