Government FOIA Officers Complain About House FOIA Reform Bill

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The House last month, by an overwhelming majority, passed a bipartisan-sponsored Freedom of Information Act (FOIA) reform bill that received strong support from more than two-dozen news organizations and public interest groups. But, as Federal News Radio reported this morning, government FOIA officers are now complaining that the legislation won't change how the government responds to FOIA requests.  

The FOIA officers, speaking for themselves based on their experiences and not for their agencies, say the FOIA Act, which passed the House 410-0 on Feb. 25, focuses too much on the end of the process and the consumer of the information.

Agency FOIA officers say they are the ones that the bill needs to help in many respects because the increased number of requests and expectations haven't come with more resources yet.

Michael Binder, a technical advisor in the Air Force's Declassification Office, said Tuesday at the American University Washington College of Law's seventh annual Freedom of Information Day event that the bill misses the mark.

He told a panel of congressional staff members at the event that they should talk to the people who do the work every day. He said the biggest problem is the lack of resources, mainly in terms of staff needed to review the requests.

Binder said FOIA officers need help from Congress to separate the requirements for classified and unclassified documents. He said removing the 20-day response requirement for classified documents would make sense as well since it almost always takes much longer to declassify documents.

There's no question that the massive increase in FOIA requests (the Department of Homeland Security reported in its recently released Fiscal Year 2013 FOIA report a staggering 231,534 FOIA requests, more than any other government agency, and its backlog increased from 28,553 to 53,598 requests) means more resources need to be invested into personnel. But Binder is wrong to suggest that the proposed reforms, which the Senate still needs to take up, won't change the FOIA process. 

Nate Jones of George Washington University's National Security Archive agrees. He told me we do new "more FOIA professionals, and the ones we do have need better treatment."

"I also think that it is time to consider embracing less FOIA review," he added. "There are huge swaths of documents--certainly not all--which can feasibly be released without a resource intensive line by line review. As a requester who wants more documents released to the public more quickly, I also believe that any FOIA bill that does not address the b(5) 'withhold it because you want to withhold it' exemption will not truly improve FOIA. It's up to the Senate to fix this anti-transparent exemption."

The b(5) exemption protects:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." The courts have construed this somewhat opaque language, with its sometimes confusing threshold requirement, (2) to "exempt those documents, and only those documents that are normally privileged in the civil discovery context.

Lauren Barlow, a lawyer for the Senate Judiciary Committee, which held a hearing last week on FOIA, told Federal News Radio "it became very clear" at the hearing "that one of the areas that needs to be addressed is exemptions, particularly B5 and B3 exemptions."

"I can't say what that would look like or for sure that would be there, but it would be something that we are going to consider and try to advance as much as possible," Barlow said.

Anne Weismann, the chief counsel at Citizens for Responsiblity and Ethics in Washington (CREW), is an expert on the b(5) exemption. She has drafted language that would limit the exemption to 12 years (the same amount of time that presidential deliberations are limited to) and build in language for a "harm test," which is already built into other exemptions, such as the b(6) privacy exemption.

Binder and other government FOIA officers, who raised their concerns Tuesday at American University Washington College of Law's seventh annual Freedom of Information Day, didn't mention that. 

At his blog Unredacted, Jones highlighted why the House bill, H.R. 1211, is a "good first step." The upgrades to FOIA include: 

  • Providing the “FOIA Ombudsman,” the Office of Government Information Services, the ability tosubmit reports and testimony directly to the Congress and the President. (Currently, OGIS often must clear its activities with the Office of Management and Budget and the Department of Justice’s Office of Information Policy– entities that may temper OGIS’s mission to review compliance of and improve the Freedom of Information Act.)
  • Requiring each agency to update its FOIA regulations “not later than 180 days after the enactment of this Act.” As the National Security Archive has previously reported, a majority of the 101 federal agencies have not updated their FOIA regulations to incorporate Attorney General Eric Holder’s declaration of a “presumption of disclosure,” encouragement of discretionary releases, and order to remove “unnecessary bureaucratic hurdles.”  The Federal Trade Commission has not updated its regulations since 1975.  While the idea of common, government-wide FOIA regulations –proposed in the White House’s Open Government Partnership National Action Plan– may also be a good idea, the National Security Archive believes a statutory requirement trumps a non-binding White House instruction.  In either case, the devil will be in the details, and open government watchdogs must be vigilant to ensure that the regulations are progressive rather than regressive.
  • Codifying the Obama administration’s “presumption of disclosure” language into law, rather than memo, which can be (and often is) replaced with the change of administrations.  (See: John Ashcroft’s infamous FOIA memo.)
  • And lastly, the advancement of the online, one-stop FOIA portal for requesters.  Sadly, the language in this legislation that requires this portal does not take the final, logical step and require that agencies join the 21st century and post released documents online.

In a letter to Congress dated February 24, the news organizations and public interest groups wrote that FOIA "has yet to become an effective and efficient tool for the public to access government information and the experience of the past few years makes clear the need for reform to ensure the law is implemented as Congress intended."

I disagree with the former statement. FOIA has been an incredibly effective tool for me and when FOIA is used correctly and requests are crafted properly it can and has resulted in the release of responsive records. But improvements are sorely needed. 

 

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