Making FOIA Work Needs More than a DATA Act Model

A recent article in Federal Computer Week started off with the questions, "Could FOIA Work on a DATA Act Model?" The short answer to that question is no. The more complete version of the answer is no, but it would help the FOIA system work better for the public. Turning FOIA into a law that actually provides timely access to records the public wants to help it better understand what the government is doing and why, however, requires other reforms.

The DATA Act works by requiring agencies to make federal payment information available in a way that is ingestible and readable by machine, and by charging agency Inspectors General (IGs) with oversight over the quality of the data. As the article points out, the addition of new oversight would be great for the FOIA system. The primary lesson for FOIA from the DATA Act, though, is that it makes sense to standardize the release of information to the public. As referenced in the article, members of the FOIA Modernization Advisory Committee recently suggested that agencies analyze types of requests and characteristics of requesters to determine records that should be made available before anyone has to file a FOIA for them.

The main benefit of applying this approach to FOIA is that it would relieve some of the stress on an over-burdened system. The FOIA process is notorious for taking a long time. Part of the delay is due to the bureaucratized process, but a large part is simply due to volume. A FOIA request can sit in an agency's backlog for months or even years before it is even assigned to a FOIA processor or a search for records begins.

Some of suggestions put forward in the article are already in the works legislatively: FOIA reform bills that have been relatively recently introduced in both the House and the Senate include provisions that call for agencies to set up a system to identify records that should be released. The House bill, HR 1211 (which was unanimously passed earlier this year), requires agency FOIA offices to establish a system for identifying categories of records "of interest to the public." The Senate bill, S 2520 (which the Senate Judiciary Committee is set to take up in the lame duck), amends the Federal Records Act to require agencies have procedures for identifying records of interest to the public.

There are dangers, though, in thinking that all FOIA needs is a dose of the DATA Act.

When agencies proactively makes records available – i.e, not in response to a FOIA request, they have total control over what is released. More likely than not, because no one wants to put out records that might show the agency in a bad light – embarrassing or showing illegality or unethical practices – those records that are most important to the public are the least likely to be released. Moreover, the government is free to whitewash the record, with no indication required of what was removed. Under FOIA, on the other hand, if a requester receives a redacted version of a record, the statutory exemption for the redaction has to be indicated and requesters can see where, exactly, information is withheld.

The FOIA is crucial because it sets standards — and limits — for what can be withheld from the public, and includes mechanisms to weigh certain interests against each other. The government thinks a record is too sensitive to national security to release? They must prove it is properly classified to withhold it. A journalist wants information related to an investigation into wrong-doing by a public official? The records will be released if the requester can show that there is a public interest that outweighs the individual's right to privacy.

Is applying some of the DATA Act's lessons to FOIA a good idea? Yes. Is it enough to make FOIA work for the public? No.

The FOIA still has some structural flaws that need to be addressed. To start with:

  • The presumption that records should be released to the public — something that is a gold standard internationally — needs to be written into the law.
  • The exemption covering inter- and intra-agency records (exemption 5) needs to be reined in.
  • It needs to be harder for Congress to create new categories of information that cannot be released to the public (under Exemption 3).
  • The Office of Government Information Services (OGIS), the office charged with mediating disputes and reviewing agency compliance with the law, needs more authority and resources.
  • Agencies should not process requests for records multiple times before posting the information on the internet. Agencies should post information to the internet the first time it is processed and released.

This is just my starting list. What would you add?

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