Today, the Sunlight Foundation commented on a “release to one, release to all” policy for the Freedom of Information Act proposed by the Department of Justice’s Office of Information Policy promulgated in a Request for Comments, including an description of the “release to all presumption” and a draft memorandum for federal agencies. Our comment, which will be available to the public at Regulations.gov, follows.

Dear Director Pustay,

We welcome the opportunity to comment upon the Department’s proposed “release-to-one, release-to-all” policy for fulfilling requests made under the Freedom of Information Act. The Sunlight Foundation strongly supports the proposal overall, with some specific concerns regarding individual components in the draft regarding overly broad exemptions and exceptions.

As a decade-old nonpartisan, nonprofit organization dedicated to using journalism, advocacy and technology to improving the transparency and accountability of our politics and government, we see great potential for this approach to improve public knowledge of the operations of government, reduce the costs of administering one of the core sunshine laws of the nation, and reduce asynchronies in the disclosure of government data that are providing an unintended subsidy to industry.

As we have argued in the past, this policy represents a significant change in the nation’s information disclosure policies that would not only complement recent updates to how the federal government protects, structures and publishes public records but could, in the long run, increase public knowledge of what is being done in our name. Governments everywhere should use the demand signal of FOIA requests to prioritize proactive disclosures online.

Structuring and publishing the datasets that commercial interests repeatedly, frequently request should increase the capacity of FOIA officers to respond to more complex public interest requests. We hope that agency CIOs will work directly with the nation’s FOIA officers to apply Project Open Data’s resources to proactive disclosure of records online in machine-readable format.

Should the proactive disclosure of records as open government data be directly tied to the demand expressed by inbound FOIA requests in 2017, we expect to see significant improvements in government transparency and accountability to not only occur in the U.S. federal government but secondary effects in other states and countries that learn from our example.

On Exceptions and Exemptions

While we acknowledge that combining open government data sets and analyzing them can lead to insight that may implicate the privacy of individuals or security of states, we are concerned about OIP embracing “mosaic theory” in its guidance to agencies on FOIA. The “foreseeable harm standard” in the statute is sufficient for officers to consider. In 2017, we expect the potential impact of OPEN Government Data Act on the default disclosure approach of the nation to be significant.

As it currently stands, mosaic theory is functioning as an abstract risk, rather than a strategy for weighing potential risks. The Department of Justice should help agencies weigh risks and public benefits. Invoking the mosaic theory often serves as an abstract gesture toward complex risk, rather than an empirical assessment of public harm.

We also are concerned about the “Good Cause” language in the draft OIP guidance. The FOIA statute provides ample leeway for officers to redact or withhold responsive documents. OIP should avoid adding justifications for no disclosure where existing justifications are already sufficient.

On a Delay in Release

As the White House Office of Management and Budget moves forward on a building new FOIA.gov next year, we hope to see the “release-to-one, release-to-all policy” explicitly connect the data and demand collected from the nation’s revamped FOIA request portal to the disclosures flowing through Data.gov.

We anticipate that proactive, periodic disclosure of structured open data that’s subject to frequent FOIA requests will, in fact, reduce costs and the backlog caseload at many agencies, freeing up FOIA processors to work on the more complicated public interest requests submitted by journalists that contribute to the accountability the public deserves.

Over the decades since FOIA was passed, the question of whether the public receives public records provided to publishers has been a longstanding question of significant public interest. Historically, publishers have not always published records that they receive. Over the past two decades, more journalists and editors have adopted the laudable practice of publishing source documents and data online that underpins the reporting stories rely upon. New storytelling formats, like the news apps, visualizations and open source tools that the Sunlight Foundation has supported and contributed to have demonstrated how powerful sharing the original documents can be informing the public and connecting them to their elected representatives.

As we wrote in July, we understand the concerns that investigative journalists have about how a “release to one, release to all policy“ could affect their work. The feedback from the initial pilots suggests that many journalists want government transparency and accountability, but fear that a policy that mandates immediate release of responsive documents to all could harm their journalism. Moreover, the surveys conducted by the Reporters Committee for Freedom of the Press confirm that only a small minority of journalists support immediate release of records due to concerns about the impact on their investigations.

In considering the two options for disclosure that OIP laid out — immediate or a five day delay, Sunlight is mindful for the Hippocratic Oath that doctors observe: first, do no harm. We do not want to see the Department of Justice create a disincentive for journalists to make FOIA requests or for publishers to allot budget and spend money to file lawsuits for records under the statute. Public records frequently provide a backbone for crucial public interest reporting that holds agencies accountable for fraud, waste, abuse or other forms of corruption.

On the other hand, we are also mindful of the concerns regarding the state of compliance with the FOIA in the United States. To delay the release of documents or databases to the general public after release to an individual requester gives us pause.

As OIP highlights, the FOIA statute includes a limited exemption for fee waivers in situations in which a given requester can demonstrate that “disclosing the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester.” This is an important signal from Congress that agencies should not create monetary disincentives for journalists and citizens.

Congress has not formally weighed in, however, on whether such a public interest exception should be considered in how records are disclosed. Effectively creating a separate class of requesters who receive documents and data under an embargo public interest exception without clear guidance from lawmakers is not ideal. We therefore recommend that there be no delay in releasing documents or databases to all online in an open, machine-readable format.

We also recommend that agencies formally ask for feedback from the original requesters regarding the impact of such disclosure on their investigations. This feedback should be cataloged and published in a report by OIP next December and used to revisit whether the policy is having any demonstrated harm upon investigative journalism or the public interest. Creating and formalized an ongoing feedback loop with the requester community regarding the quality, frequency and outcomes of disclosures is in of itself a desirable dynamic, and we hope that the Department of Justice works with the Office of Government Information Services at the National Archives in developing improvements in this area.

As a practical matter, we anticipate that agencies may not publish all responsive documents online immediately upon disclosure to an individual. As IT modernization improves the capacity of agencies to manage their information as an asset, however, we see a future where agencies responding to FOIA requests for data, documents and software code will be able to conduct searches, redact the results and disclose them online much more quickly.

If news organizations show that this policy has caused issues for investigations, OIP should reform it. We look forward to participating in that conversation.

Respectfully,

The Sunlight Foundation