Can The Internet Save FOIA?

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I’m really happy to present this independent research project by our fall intern David Brisson.  David decided to do some digging into the Freedom of Information Act (FOIA) and figure out how the internet can improve this long standing tool for open government.  – Nisha Thompson

Now, I had heard of the Freedom of Information Act or FOIA (rhymes with “soya”) before I came to the Sunlight Foundation. But by “heard” I mean just that – it popped up here and there, usually in reference to fighting the man. A family friend, Steve, invoked it in ardent post-dinner conversations about local government corruption back home in Rochester, NY. My sister, a reporter in Philly, would mention making FOIA requests, usually accompanied by the thinly veiled exasperation of someone who knows they have to plunge a toilet, but still wishes someone else would do it instead. Activist bloggers even started dropping the political F-bomb like a verb: “If someone is not being cooperative with you, you can FOIA them out the butt and make them wish they never heard of you.” I guess it was that sense of edginess that first interested me in learning more about FOIA. Unlike so many other things in politics, I got a sense that people were using that little acronym to actually get things done. So when Nisha approached me about a topic for this blog post, I figured I could indulge my curiosity of FOIA and maybe help spread a little empowerment along the way.

So for starters, what is the Freedom of Information Act? Essentially it’s a law giving individuals and organizations a way to access government information. People can make requests for a wide range of government records and data, which we in the transparency movement refer to as “awesome.” If Apollo was the Greek god of sunlight, you can think of FOIA requests as Apollo’s arrows trying to pierce through the darkness. Ok, I admit that’s probably a little over the top, but in government transparency FOIA has that feel. Unfortunately, the rules for FOIA resemble the DMV more than they do archery.

First off, FOIA only applies to the executive branch of the U.S. federal government. So it’s a no-go for legislative and judicial records. While all of the states do have their own FOIA-like statutes, known as sunshine laws, they’re technically separate from FOIA and vary widely from state to state. FOIA also has nine exemptions and three exclusions, which mainly serve to protect confidential information relating to national security, as well as medical data and personal stuff that you really don’t have a right to pry into. You can see the full list here. Often there are also fees that apply and you may or may not be able to get a fee waiver.

Now for whatever reason, I was under the impression that FOIA was a relatively new thing. A Google search quickly schooled me on that: FOIA is actually older than Rolling Stone Magazine and heart transplants. Still, I couldn’t find a simple, visualized timeline of FOIA history anywhere, so the Sunlight team and I put this one together, just for you (click on each event for more info):

You can see that FOIA has undergone a long process of tweaks and amendments since 1966, with evidence of increasing public awareness of its uses. The 2007 Government Accountability Office report on FOIA notes that between 2002 and 2005 there was an increase in requests made and processed. Yet the current state of FOIA isn’t all unicorns and rainbows.

As Bill Allison, editorial director of Sunlight’s Reporting Group, attests, FOIA is usually the Sunlight Foundation’s method of last resort when it comes to getting government info. This is because trying to get what you want through FOIA has traditionally been like trying to talk to someone who cares at a credit card company, except that you get put on hold for five years. To be fair, agencies have limited resources and budget restraints making it hard to comply with FOIA demands. Although agencies are required by law to respond to all requests within 20 days, they often do not. This even precludes the fact that a “response” need only be a note effectively saying, “Hi. We got your request.”

Furthermore, even if an agency does decide to grant you the information that you need, there is no guarantee that it will be in the format you want. A good example is when Sunlight Investigative Writer Anu Narayanswamy requested non-confidential information from the Pentagon in electronic format. After much wrangling, the Pentagon finally disclosed the records, but only did so by printing them out, taking photos of them, and then saving the photos on a CD-ROM as TIFF picture files. When it comes to reams of data, TIFFs are clunky, unsearchable, and generally hard to process in any meaningful way. Sadly, “proactive” is still not a word that comes to mind when talking about government and FOIA.

Another wall transparency advocates keep smacking their heads against is the inadequate tracking of requests and the definition of “news media.” Tracking FOIA requests well should really be a no-brainer, since it prevents them from getting lost and lets agencies see how many repeat requests they are getting. And the definition of “news media” is important because FOIA grants fee waivers to representatives of the news media. With traditional news sources fighting to stay out of bankruptcy, and new media like bloggers and independent news websites not yet being treated with the legitimacy many of them deserve, there’s been a fight over who’s eligible for the waivers. The Open Government Act of 2007 tried to address these problems, but it didn’t provide any funds for the new tracking system it designed, and though it defined bloggers and websites as part of the news media, it did not specifically address “independent” ones. That means that an agency could still argue that only bloggers and websites of established news providers, (e.g. the blogs of Time or Newsweek) are eligible for a waiver.

So with all these problems, where does FOIA go from here? The answer, I believe, is the Internet. While the Internet is capable of alleviating some of the issues mentioned above, FOIA procedure still feels like it’s stuck in the 60’s (and not the good parts). Most executive agencies have barely moved towards complying with the E-FOIA amendments passed in 1996. As of 2007, only 21% had all four required categories of records on their FOIA Web sites and only 59% of agencies had posted documents identified as “frequently requested records” or previously released records. Even if the agencies just closed the gap on these miserable stats, they would be well on their way to reviving the spirit of FOIA and reducing administrative costs and processing time.

We could even look someplace a little sunnier for inspiration: Mexico. Some might be surprised, but Mexico has arguably the best federal freedom of information law around. Not only does it cover all branches and bodies of government, it also stipulates that a failure to make a disclosure decision within the time limit is understood as accepting the request, and the agency is then required to disclose the records (a separate committee checks everything for confidential info). All requests and their responses have to be published, and all documents disclosed electronically since 2003 can be accessed through a central website. Now I’ve never needed info from the Mexican government, but knowing there is a one stop shop I can go to sounds pretty sweet to me.

Back to the USA, I envision a day when there is a presumption of government information online. This means designing data systems with the idea that the data will be made public. Right now, a lot of government documents just mix all their confidential and non-confidential data together, making it a giant pain to prepare for a FOIA disclosure. Agencies should just put private or confidential data in a separate column whenever they can, making it easy to remove at the appropriate time. They should also post records online before they’re repeatedly badgered about it. That would make a whole lot fewer FOIA requests for them to worry about. They could avoid waves of repeat requesters clamoring at the gates if they put up frequently-requested documents online. The executive branch could even set up a central FOIA processing website, which would streamline administration across all agencies.

Fortunately, the Obama crew has made some positive movements recently. The administration just issued its Open Government Directive this month, which laid out concrete steps towards accomplishing some of things I mentioned. It’ll make executive branch agencies put up Web sites explaining their FOIA processing systems. Departments will also have to stare at their navels a little bit and come up with plans to improve the process and reduce backlogs. The plan also includes building an Open Government Dashboard to track progress. Of course, not everyone’s giving it a standing ovation, but there are some signs of progress already, at least within the Department of Justice. The Directive is awfully ambitious, especially without making any new money or resources available to accomplish the new goals, so I’m cautiously optimistic about the whole thing. It’s a good sign, regardless.

Maybe someday government information will not just be accessible, but also searchable, mashable, and visualizable. Government has a long way to go, but we are finally seeing steps in the right direction. Once we establish the presumption that information should be online, we can move from a government culture that sees FOIA requests as unexpected nuisances to one that embraces openness as a way to improve government. If the Sunlight Foundation accomplishes its goals, we won’t even need FOIA requests, because government info will be online in real time: everything at our fingertips, right when we need it. Personally, I’m just hoping to see the day when the word FOIA doesn’t bring my sister exasperation, Bill and Anu don’t have to monkey around with TIFF files, and nobody needs to FOIA anybody “out the butt” just to get some data.

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  • Noel Dickover

    Just wanted to make a comment on this sentence: “Agencies should just put private or confidential data in a separate column whenever they can, making it easy to remove at the appropriate time.”

    This makes it sounds like those working in Agencies intuitively know what is confidential from what is not, and stranger still, that most data developed is structured data. The exact opposite is closer to the truth for both of those assumptions. The vast majority of all data is unstructured, and most people don’t have a clue in separating what’s confidential from what’s not.

    Also, does anyone spend their time organizing their files just in case a disconnected third party in the seemingly distant future might want to access them? I think you’ll find that most everyone organizes their information for their own accessing and retrieval needs (assuming they give any thought at all to it). To expect folks to consider potential FOIA considerations above their own work process needs is just not practicable (one can only imagine the waste, fraud and abuse charges levied if an agency did try to organize this way). A more workable solution would be to figure out how to get out of the dark ages of File Shares and into more discoverable storage mechanisms so that a lot of the initial culling can be automated.

  • J. Edgar Hoover had a great system. The really juicy stuff was in a special file that only he and two other people had access to, not mixed in with all the boring stuff.

    So, if anyone wanted the information, all they had to do was write the Director instead of going through layers of bureaucracy (yes, even at the FBI!). He would, of course, deny there was such data or say no but it was potentially one stop shopping! In this regard (if only in this regard) can we say he was ahead of his time? :)

  • I don’t know if the internet will save FOIA on it’s own, but it will continue to help! We’ll still need humans (like you) to press for answers and compliance.