By Scott Klinger, Center for Effective Government
In the days following the 49th anniversary of the nation’s Freedom of Information Act (FOIA) on July 4, the White House announced a new FOIA-related pilot program involving seven federal agencies. Under the new policy, dubbed “release to one is release to all,” agencies would post information released in response to any FOIA request on its website for all to see. This is a big win for the transparency community, which has been asking for this for years.
The U.S. Environmental Protection Policy (EPA) has had this policy in place since 2013. Joining EPA in the new initiative are the Office of the Director of National Intelligence, the Millennium Challenge Corporation, and some offices within the Defense Department, the Justice Department, the Department of Homeland Security, and the National Archives and Records Administration.
FOIA requests have soared in recent years, reaching 714,231 last year, up from 514,541 in 2013. As a result, many agencies have large backlogs of requests waiting to be filled. Agencies failed to respond to nearly 70,000 requests last year, and 40 percent of the responses were “no.” This initiative could be an excellent way to reduce the workload of FOIA officers within agencies.
The Center for Effective Government celebrates this initiative as one that makes government more transparent and responsive to citizen inquiries.
Will it work?
Only a few weeks into the initiative, it is too soon to make even an initial assessment of whether it is working.
All agencies have FOIA-related landing pages and an e-library related to FOIA requests as required by law. Most are easy to find but contain very little information that has been previously disclosed.
Only two of the agencies involved in the pilot program – the Department of Justice (DOJ) and the Millennium Challenge Corporation – make mention of the new program on their FOIA landing pages.
DOJ’s Office of Information Policy also issued new guidance on FOIA practices. Among its new commitments: FOIA requests that have lingered unaddressed for long periods of time will not be summarily deleted if the requesters don’t quickly respond to a “still interested?” query. Under the new policy, such inquiries will only be sent when agency staff honestly believes the requester may no longer be interested, will only be used once, and will allow the requester at least 30 days to respond before the FOIA request is closed.
DOJ also invites Americans’ input on its pilot program. “We also invite the public’s feedback as we explore this proposed policy shift, and welcome innovative ideas and suggestions for overcoming implementation challenges,” the agency said. Comments on the DOJ’s implementation can be sent to its Office of Information Policy at ReleaseToAll@usdoj.gov.
The Millennium Challenge Corporation also announced the new initiative on its FOIA site and includes a web form for citizens to share their ideas on the new policy.
In another initiative related to the recent announcement, the Department of Homeland Security (DHS) announced a FOIA mobile app that it hopes will simplify the FOIA process. The app will allow users to file FOIA requests electronically, check on status of requests, access the agency’s FOIA library from their mobile devices, and receive agency FOIA-related updates and invitations to events.
DHS receives more FOIA requests of any federal agency and has struggled to meet these requests in a timely manner. DHS reports that it has reduced its FOIA backlog 20 percent since October, even though 82,324 FOIA requests remain unfulfilled. While DHS’s new “FOIA on your phone” feature will greatly enhance the accessibility of the FOIA process, it also has the potential to swell the number of FOIA requests the agency receives each year.
Immigrants seeking information on their own security records – often the result of their efforts to attain citizenship – are the largest source of DHS FOIA requests. Requests from individuals for their own files will be exempt from the new disclosure requirements.
- Probably the greatest challenge of the new policy is organizing and cataloging the newly released FOIA request information in a manner that makes it usable and searchable for citizens. If citizens can’t easily find the information they are looking for, they are likely to file a new FOIA request, and agency backlogs and workloads will continue to be an issue.
- Both journalists and corporations have taken issue with the new program. Journalists use the FOIA process to gain information they use in news stories and worry that publishing the results of their requests will allow them to be scooped by competitors. A small industry of private corporations file FOIA requests and then package the government information they receive for commercial sale. This new policy threatens their business model.
- Another issue: Existing law requires agency websites to be accessible by visually impaired people, and the growth in website content expected from this new policy will require significant new investments in machines that code graphical items so they may be used by visually impaired web visitors.
So, while we applaud the intent of the new initiative, many practical issues will only be sorted out as agencies move to enact the White House program.