How transparent is FOIA?
- By Chase Gunter
- Mar 13, 2018
On Capitol Hill, senators are complaining that there's too little transparency surrounding the government's premier transparency law.
While the Department of Justice recently launched a one-stop shop to centralize the submissions of Freedom of Information Act requests, Republican and Democratic senators alike expressed frustrations with agencies' actual responses — or lack thereof — to records requests.
"No one can say with a straight face that FOIA always works as intended," said Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) at a March 13 hearing.
According to an analysis of FOIA requests made in eight months under the Trump administration conducted by the Associated Press, requesters received censored or no materials at all in 78 percent of more than 823,000 cases.
On the topic of exemptions and redactions, "the whole design of FOIA is that it's a balance of interests," said Melanie Pustay, director of the Department of Justice's Office of Information Policy. "It's balance of the need for the public to know about their government and be engaged, but also the right of the public to have protection for certain important issues," such as personal privacy and law enforcement techniques and procedures.
But FOIA requests are now being made to access cabinet secretaries' daily logs and other seemingly ordinary data that used to be readily available, said Sen. Sheldon Whitehouse (D-R.I.), and that "jams up the FOIA process,"
"If an agency knows that no gavel will ever come down requiring a real answer, it's going to open up the mischief even further to giving either nonsense or really pablum answers," Whitehouse said.
Grassley also pressed on the status of the "release to one, release to all" policy, first proposed — but not finalized — under the Obama administration. Currently, the FOIA Improvement Act of 2016 directs agencies to make publicly available in an electronic format records that have been requested at least three times.
Pustay said that while her office encourages proactive disclosures, agencies have concerns about the time and resources it would take to properly code and upload documents online after a single request and the policy "is still under review."
"That doesn't meet the common-sense test," responded Grassley.
Alina Semo, director of the National Archives and Records Administration's Office of Government Information Services, testified that "many" of the FOIA Advisory Committee's recommendations, which will be finalized in April, concern ways to improve proactive disclosures.
Dave Powner of the Government Accountability Office said that, absent emphasis from the White House, agencies may not feel compelled to fully comply with the goals of FOIA.
"It's a fundamental management, leadership issue," he said. "If you don't have the backing of the [Executive Office of the President] and the Office of Management and Budget, it's very hard to get the right openness and progress moving the ball forward."
Compared to the emphasis given to the development of the IT dashboard, "you don't necessarily have that openness and transparency with FOIA today, he added.
Powner also said that some agencies' chief FOIA officers are not senior officials designated at the assistant secretary level and lack the authority to make substantive changes. This includes the Department of Homeland Security, which outpaces the rest of government in terms of FOIA requests per agency by a wide margin and suffers from a backlog of more than 46,000 requests as of fiscal year 2016.
He added that agency reorganizations represent an "opportunity to elevate those positions."
"What it tells you is, to be very blunt, is this important enough for that agency to put them at the appropriate level in the department," Powner said. "If you really want to fix FOIA, you've got to get executives at these departments and agencies engaged with the right metrics and that's what drives change more than anything."
Chase Gunter is a former FCW staff writer.