EFOIA: Mixed bag of access benefits and legal loopholes

Last fall Congress passed the Electronic Freedom of Information Act Amendments of 1996 or EFOIA as it is commonly known. The law requires that if a member of the public submits a FOIA request for some agency records and asks that the records be supplied in electronic media the agency must furnish the records in electronic media if it can readily do so.

Years ago it actually happened that people sent in FOIA requests and specified electronic media but the mean old agencies fulfilled the requests with paper printouts of the electronic records. I say "years ago" because I haven't heard of this actually happening for at least 10 years. Most agencies have been routinely supplying records in electronic form if asked to do so.

The EFOIA bill championed by Sen. Patrick Leahy (D-Vt.) had been hanging around for years. In both its previous incarnations and its final form the bill suffered from shoddy draftsmanship. An example of poor wordsmithing is the new language on expedited processing. Agencies are to furnish expedited handling of requests when "a person primarily engaged in disseminating information" demonstrates a "compelling need" such as a necessary "urgency to inform the public concerning actual or alleged federal government activity " according to the law.

This language carries no easily recognized meaning. It sounds to me as though any reporter facing a deadline could invoke expedited processing but I can't see why any agency would agree with the reporter particularly if the reporter's story will prove embarrassing to the agency. So long as the agency whose ox is about to be gored is the judge of compelling need the EFOIA law will not advance the cause of government's public accountability a bit.

Righting Legal Wrongs

The principal benefits of the law as far as I can tell lie in the fact that EFOIA overturns two bad court decisions. One was SDC v. Mathews which held that the electronic files in the National Library of Medicine's on-line information system were not agency records for the purposes of FOIA. The other was Dismukes v. Department of the Interior which held that the agency has the prerogative to decide the format in which it fulfills a FOIA request.

The law is now clear on these points. If a requester asks for computer records in electronic form the agency must yield them in the form the requester desires.

Beyond this the EFOIA law in attempting to speed up the disclosure process actually introduces several new loopholes that could slow things down. An agency now must make a reasonable search for records unless the search would interfere with the agency's information system operations. The old law did not give agencies this opportunity to claim that the search was operationally problematic. Now it looks as though agencies have been given a new tool with which to stall and obstruct FOIA requests.

The new law also adds an interesting twist to FOIA. Section 11 says agency heads must make available reference guides that contain an index of all major information systems a description of major information locator systems and a handbook on how to obtain various kinds of information from the agency. The idea seems to be to induce some kind of convergence between the Freedom of Information Act and the Government Information Locator Service (GILS).

Presumably past electronic FOIA requests will be stored electronically so that other members of the public can locate them and secure copies.

I think this language displays a misunderstanding of what FOIA and GILS are all about.

FOIA deals with the public's right to gain access to government records.

GILS deals primarily with how to locate information that agencies have already published. The information that agencies have in their records and the information in agencies' publications are quite different universes with arguably minimal overlap. A FOIA requester typically seeks correspondence memoranda and other documents dealing with a specific topic or event. This is not the kind of information agencies put into their publications. I suppose GILS is useful in educating the FOIA requester about an agency's mission and programs but that education still may have little bearing on the FOIA request.In my view the EFOIA statute is primarily a minor technical correction to an area of some ambiguity in the law - and not a particularly good correction at that.

EFOIA is no great leap forward.

Yet the fact that it was passed at all may be an important reminder that the public has rights of access to electronic as well as paper-based information resources.

Sprehe is president of Sprehe Information Management Associates Washington D.C. He can be reached via the Internet at jtsprehe@intr.net.

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