Oh, the Places FOIA’ll Go – Freedom of Information Law Turns 46

This 4th of July marks the 46th anniversary of the enactment of the Freedom of Information Act (FOIA). FOIA is a bedrock law of democracy: it allows citizens to find out what the government is doing, and to hold officials accountable for their actions. In just the last year, people have used records handed over as a result of a FOIA request to shed light on the the Federal Bureau of Investigation's secret surveillance letters, the government's actions leading up to and as a result of the 9/11 attacks, words the Department of Homeland Security monitors on social media sites, misleading information in the FBI's 'domestic terrorism' training material on activists, and countless other important issues. But as we honor FOIA's past, we want to also share some thoughts on FOIA's future.

First, we can never stop pushing to strengthen FOIA's provisions and fight off proposals that would undermine the public's right to know what its government is doing. It is incredibly easy for Congress to expand the scope of information that can be withheld under the FOIA because the FOIA's 3rd exemption covers any material made exempt under another statute. By adding just a few sentences to a large bill, Congress can, with little oversight, cut off public access to records. This year OpenTheGovernment.org worked with our allies in the advocacy community and Congress to push back attempts to allow the government to restrict access to important health and safety information in the National Defense Authorization Act and in a Food and Drug Administration (FDA) reauthorization bill. Ultimately, we succeeded in having Congress adopt compromise language that makes the public's interest in disclosure of Defense critical security infrastructure information a determining factor in its release or withholding, and limiting the scope of drug and safety information that can be withheld while addressing the FDA’s concern that some foreign agencies need more assurance the information will be kept confidential to encourage information sharing. We continue to fight off dangerous proposals in various cybersecurity bills that threaten access to information the public may need to determine if the government is responding appropriately to cyber threats, and hold officials accountable for their actions.

Second, the recently-created Office of Government Information Services' (OGIS) authority needs to be given more recognition and it needs more resources to carry out its statutory mission. OGIS was created by the OPEN Government Act of 2007 to serve two functions: mediate FOIA disputes between requesters and all federal agencies and make recommendations to Congress and the President to improve FOIA processing. Currently the office, which is located within the National Archives and Records Administration (NARA), has a budget of about a million dollars and a staff on less than 10 to fulfill these dual missions. On top of the financial strain weighing on OGIS, there have been several instances over the past year that highlight tensions between OGIS and the Justice Department's Office of Information Policy (OIP). The Office of Management and Budget also delayed and then attempted to kill OGIS' first round of recommendations; ultimately a subpoena threat from Congress shook the recommendations loose.

Third, it's time to embrace new ways of thinking about the FOIA process so that we can get to a system that works better.  The current system is plagued with backlogs, delays, and other bureaucratic frustrations that make it hard for many people to use effectively. As we've written about before, there is a project underway at the Environmental Protection Agency (EPA) that many open government advocates describe as the "best hope for improving the administration’s compliance with the FOIA and affording the public the broadest access to government documents." Working with OGIS and the Department of Commerce, EPA is developing a FOIA Portal that has the potential to: make it easier for the public to submit requests by providing a uniform, centralized location to make and manage requests across the federal government; cut down on delays by encouraging requesters to provide email address for quicker communication and allowing agencies to share documents electronically across the system; allow users to track requests; provide better public access to all documents released under the FOIA; and save taxpayer funding.

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