How to Actually Improve Public Access to Government Documents (Under the FOIA)

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When can a Freedom of Information Act (FOIA) request be worth millions of dollars? When it is made by an investment company hoping to gain information about potential stock purchases (and sales). A recent Wall Street Journal article details the use of FOIA requests by investment firms. These firms make document requests to ascertain potential corporate liabilities and successes, requesting, for example, documents detailing Food and Drug Administration inspections and customer complaints about consumer products and pharmaceuticals. To be clear, what the Wall Street Journal describes appears to be perfectly legal – just another form of research conducted by companies that are doing their due diligence before making large scale investments.

But it has touched a nerve within the open government community. Open government advocates argue that the investment firms are taking advantage of the FOIA in order to gain insider information that only benefits the firm and is never shared the public at large. It raises complex questions when a public interest law is used to create private gain, even though the FOIA originally accounted for commercial requesters.

Seeing potential gains in efficiency, accountability, and fairness, FOIA reformers see stories like this one as opportunities to propose new FOIA procedures to promote public access.

The first, and probably most obvious solution, is greater proactive (or affirmative) disclosure. We’ve written often about the benefits of proactive disclosure. Where FOIA is reactive, and necessarily limited – a person has to make an effort to draft and submit a request – proactive disclosure lowers the barrier to access by making information a mere internet search away. The President has recognized the importance of proactive disclosures and has directed agencies to “take affirmative steps to make information public” without waiting for specific requests, and, to “use modern technology to inform citizens about what is known and done by their Government.” This is easiest for specific, routinely produced datasets.

The Form 483s – facility-inspection reports prepared by the Food and Drug Administration – that are the subject of the Wall Street Journal Story would be excellent candidates for proactive disclosure. These documents are routinely produced – with around 2,500 produced last year, according to the Journal – and could easily be posted up online with proper redactions to protect sensitive trade secret information. This would help to level the playing field between investment companies and the public and would eliminate the time and cost associated with processing hundreds or thousands of FOIA requests for Form 483s. Handling the roughly 10,000 requests sent to the FDA in fiscal 2012 cost the government $33.5 million, and the time of more than 100 workers. The requests for Form 483s were a significant portion of these requests. The fees charged by the FDA to process requests cover only a portion of its costs.

In response to the Wall Street Journal story, some open government advocates have called for all FOIA responses to be posted publicly at the same time that they are given to the requester. Currently, the FOIA requires that agencies post “frequently requested” documents online. The Department of Justice has advised agencies to interpret this provision as applying to documents that are requested three or more times. Many agencies have FOIA reading rooms where such documents are posted. The problem is that not all agencies comply with this requirement, and even those that do try to comply sometimes lack the ability to keep track of how many times a document has been requested. Advocates argue that requiring agencies to post responses online after the first FOIA request would eliminate the cost of repetitively processing duplicative requests and would improve public access to government information.

The timing of the online posting, though, is a matter of debate. While some advocates have said that FOIA responses should be posted online at the same time that they are given to the requesters, others believe that a slight delay before posting online is warranted.

As a veteran FOIA requester and litigator, I see strong reasons to build in a three day delay before posting FOIA responses online. This is, by no means, the consensus around the open government community (we come from a variety of different backgrounds and sometimes do have differing opinions on how to best address policy issues). As most FOIA requesters and litigators have experienced, obtaining documents under the FOIA is a chore. Requests often take months or even years to bear fruit. And litigation takes even longer. There is often expense involved – search and duplication fees, as well as court filing fees – especially if you aren’t a member of traditional media. The public interest is better served when we preserve the interest of requesters – the interest in getting an exclusive story or getting credit for fighting to make documents public. For as long as making a FOIA request takes effort, we should preserve the incentives that offset the costs of that effort. In exchange for drafting the request, hounding the agency, exhausting administrative appeals, waiting out the deadlines, and going to the trouble – and expense – of litigating, requesters should be granted few days time to review documents and write the exclusive story or take the documents to a high circulation newspaper.

In my work as a FOIA litigator, I obtained some pretty interesting documents that led to front page stories in the New York Times and coverage in most of the highest circulation newspapers in the country. After receiving those big envelopes (or zip file attachments) filled with documents, I would typically review the documents in the first 24 hours, work to identify the interesting parts, and then pitch them to a high circulation press outlet. Inevitably, the first question I would receive from the reporter would be “who else have you shown these documents to?” The reality of news media is that once the documents are posted online, they lose a lot of value. A set of documents that could have gotten nation-wide exposure from a paper like the New York Times, Wall Street Journal, Washington Post, or USA Today, may instead receive little or no exposure if there isn’t some opportunity for short term exclusivity. If the aim is to get the information out to the largest audience, there is some value in building in a slight delay.

It is also likely that if there is no opportunity for an exclusive story, many journalists would cease to make requests and public knowledge might suffer.

Some advocates, including my own coworkers, have made principled arguments to me regarding why the information should be free and should be public immediately, but I’ve failed to see how a two or three day delay would, in most cases, cause a real harm to the public. If we want to combat the kind of behavior detailed by the Wall Street Journal, there are ways to do that. Commercial requesters are already separated out from all other requesters under the Freedom of Information Act (for fee purposes). The three day delay could be automatically waived in regards to commercial requesters. Or, all documents could be presumptively placed online, unless the requester specifically asks for a slight delay.

A three day delay before posting online would also help to address potential delays created by the practical implications of online posting. Whenever the government posts a document up online, it must comply with Section 508 Amendment to the Rehabilitation Act of 1973, a law that protects persons with disabilities. This law requires that all government documents must be machine readable. This is a fairly arduous process which might otherwise further delay the release of documents to the requester. Allowing the agency a few additional days to convert documents to machine readable format without delaying release to the requester may be an additional benefit.

These are only a few solutions that could address the problem created by investment firms exploiting government information requested under the FOIA. While open government advocates may argue over what is the best way to get more information out to the public, it seems to be universally agreed that greater proactive disclosure would be laudable, and the Form 483s would be a great place to start. Also, as agencies move their FOIA systems online, mechanisms to track and affirmatively disclose frequently requested documents should be built in.

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