An experiment in responding to FOIA requests by also posting responsive documents online should do more good than harm for transparency and accountability in government by, if implemented well, identifying practical ways to promote quicker and broader release of information held by government.
The pilot project will test the challenges agencies face operating under a policy of posting documents online at the same time they are sent to FOIA requesters. Several agencies are taking part in the “Release to One, Release to All” pilot project, which lasts six months. The Justice Department is accepting comments and will release a report to the public with the findings.
The media groups that belong to SGI have for nearly ten years worked together to advance commonsense ideas to make FOIA work better. We have argued repeatedly in testimony before Congress that journalists are generally frustrated with the delays and difficulty using FOIA to obtain information held by government, and we support reasonable efforts that make FOIA work better while making more information available to the public.
This pilot project to measure the feasibility of a “release-to-one, release-to-all approach” to FOIA is a good, commonsense approach to a thorny challenge. At a minimum, we support experiments that make more information available to the public and make the FOIA process work better.
Posting responsive documents under FOIA is not a new idea. Congress in 1996 required that agencies affirmatively make available information if they anticipated future FOIA requests for the same information. The Justice Department for many years interpreted that requirement to mean that agencies should post FOIA responses if they receive three or more requests for the same information.
Nearly twenty years later, few agencies routinely do. Open government advocates for years have complained that agencies do not take seriously the affirmation disclosure requirements.
At the same time, the technology and know-how exists to post documents online when released to the requester. The Environmental Protection Agency, for one, does this through FOIAonline. (EPA is participating in this pilot project.) It’s unclear how much of a delay, if any, practically occurs between the time a requester receives a response and that response appears on FOIAonline.
Some concerned journalists argue simultaneously giving the public access to documents a journalist has requested hurts the chance of breaking a story. With exclusives at risk, investigative journalists are less likely to use FOIA to engage in the kind of deep-dive work that exposes corruption or failed policies that would otherwise not see the light of day, this argument goes. Some argue for a short delay between the time a requester receives a response and the response is posted for all to see, however the amount of delay considered “reasonable” varies widely. Is 24 hours enough? A week?
The media benefits when agencies makes available documents previously requested.
Routinely posting responsive documents online helps eliminate repeated searches for the same documents, ultimately helping agencies work through their FOIA backlog, avoid duplicative requests, and answer more requests. Before making a new request, search the text of documents previously released. A new FOIA request many not even be necessary.
There are other reasons to support greater adoption of this approach. Delays are rampant in FOIA. Any experiment to speed up the release of documents should at least be tested. It makes little sense for an agency that has already located a document and scrubbed it of exempt material to repeat the process the next time a request comes in.
As a practical matter, it is unclear whether agencies will post responses online at the same moment they are sent to the requester, other whether posting online will lag behind by hours or days the response that goes to the requester.
FOIA has for decades suffered from long delays, processing headaches, and a belief that agencies can find a way to delay or not release records when they do not want to release information.
We’ve heard some journalists complain agency X has played games upon receiving an adversarial request by releasing embarrassing documents online at the moment the agency releases the documents to the requesting journalist, thereby blunting the impact of a negative story. A consistent approach to online posting eliminates the discretion, and therefore the ability to abuse that discretion, when an agency is tempted to play such games.
Further, the original FOIA requester will in many cases know the context of the story best and should be able to quickly move an explanatory story before another colleague can put it together.
We support innovative approaches to making FOIA work better. For several years we have promoted the idea of a FOIA portal — a single system for agencies to receive, process and respond to FOIA requests and for requesters to submit requests, track the agency’s progress and receive responses. When EPA, the Commerce Department and the Office of Government Information Services (OGIS) built FOIAonline, it was the first of its kind within government, and its leaders had to overcome resistence, so we honored it with our Sunshine in Government Award. Today, expanding that service to other agencies is slow and deserves far greater support than it is getting.
This pilot project is far more modest. Journalists concerned agencies may be suddenly dumping documents and with it lots of scoops should be reassured to know this project is only a six-month test by the agencies participating. They will document what they have to do differently, any direct costs and staff time associated with the change, and whether it lead to slowed responses. This is fact-gathering. And it is a conversation worth having.
It is also worth noting the absence of the Office of Government Information Services in this pilot project. Congress created OGIS to mediate disputes between agencies and requesters and use that experience as a basis for overseeing agency compliance with FOIA’s requirements and making recommendations for practical ways that Congress and the President could make FOIA work better.
OGIS also supports the FOIA Advisory Committee, and this pilot project should be developed in close consultation with that advisory body.
OGIS has been without a permanent director for nearly a year. Even when OGIS had a director, the office was hamstrung by other agencies giving input on the very recommendations OGIS was supposed to make to improve those agencies’ efforts.
We hope Congress will soon fix that problem through FOIA reform legislation, and OGIS can take a leadership role working with the Justice Department in assessing the pilot project and recommending next steps.
We’ve consistently argued that the public has a fundamental right to know what our government is doing in our name. Information held by government should be available in a timely manner to the public unless an identified interest (such as privacy or national security) merits secrecy.