When Sunlight signed onto the 50 Days of FOIA campaign, we expected to be adding our voice and ideas to those of dozens of other open government allies pushing for Congress to pass legislative reforms to the Freedom of Information Act (FOIA). Thankfully, we are now celebrating Congress sending FOIA reform to President Barack Obama. S.337 is currently listed as pending legislation on the White House website. We hope the president signs it into law by or on the 50th anniversary of the law on July Fourth.
The bill that Congress ultimately passed is neither as strong nor as flawed as it could have been, but it’s an evolutionary improvement in the statute that should improve a system that many journalists and members of Congress view as fundamentally broken.
Reforming FOIA now, however, was crucial to ensure that the initiatives that the Obama administration has advanced over the years become the default disclosure policy of the country, not to be erased by the stroke of the next president’s pen. When the president signs it, as the White House said he would, the legislation will strengthen the role of the Office of Government Information Services (OGIS) at the National Archives, which is entrusted with providing mediation services to FOIA requesters.
The bill will also codify the “presumption of openness” into law that the Obama administration supported but far too frequently failed to implement in action. When a judge considers a FOIA lawsuit, he or she will have to decide whether a given agency honored that principle.
There are other valuable reforms in the bill that will improve how FOIA is managed and implemented. Agencies must now make data and documents available in digital form. Documents that are requested three or more times must be published. Exemption 5, which applies to deliberative processes, is limited to documents less than 25 years old. There will now be a Chief FOIA Officers Council charged with improving compliance, similar to the way the Chief Information Officers Council is entrusted with improving the government’s use of technology.
Even if the Obama administration has not lived up to the standard set in rhetoric, the next White House will have to do so. Here’s a some ideas to improve FOIA that don’t require more legislation, along with some that probably will.
Ask requestors for feedback
While the Justice Department’s statistics claim a historic high in the total number of FOIA requests processed, the data doesn’t capture the quality of the responses nor the satisfaction of the requestor with what he or she receives. We encourage the Justice Department’s Office of Information Policy (OIP) and agencies to request and publish data from requestors about the process, from how timely and responsive agencies were to the documents themselves. As more data on requestor experience is created and analyzed, Congress, OGIS and OIP will have more insight into which agencies or agency components need assistance.
Post contact information
The House FOIA reform bill would have mandated that agencies enable the public to submit FOIA requests over email. We hope that at least one agency will experiment with doing so. In the meantime, every single FOIA office should make sure that they post FOIA officer names, phone numbers and email addresses for requestors to follow up on requests.
Pick up the phone
According to OGIS, the number one cause for lawsuits is agencies simply not responding to requestors. There’s a simple solution to that insight: Make sure that every FOIA request is acknowledged by phone or email immediately, even if the documents or data is not immediately provided. Members of the media, the public or companies are exercising a right mandated by Congress and should be treated with respect.
Increase funding for FOIA staff
Unfortunately, as we and our allies have noted before, the bill does not provide additional funding for hiring more FOIA officers at agencies. That’s a problem: According to the 2015 annual report on FOIA published by OIP, while full-time staffing has rebounded from 3,838 full-time FOIA staff in 2014 to 4,121, 27 agencies report having fewer than one full-time FOIA staffer.
Make better FOIA software
Increased funding isn’t enough, though. After all, the U.S. government spent $461 million dollars on FOIA in the 2014 fiscal year, while the backlog grew 67 percent. The U.S. government spent $448,961,678 processing requests in 2015, while the backlog fell.
As the White House Office of Management and Budget considers how to revive the FOIA request portal mandated by the bill, it should ensure that the nation doesn’t just settle for existing commercial options but invests significant resources in making open.foia.gov into a global model for software that helps both requestors and FOIA officers.
The U.S. Digital Service and 18F have brought much-needed design principles focused upon user needs into government. The Justice Department now has digital service staff. The Obama administration and the next administration should demonstrate a shared commitment to honoring the nation’s open government law in the 21st century by building FOIA software with the people who make requests and process them. Oakland’s RecordTrac is a useful model for improving the FOIA process. The national success of PostCode’s NextRequest, which built upon that code, is worth studying and scaling.
One approach that the White House and Justice Department could also consider is building a platform that would enable people to use apps and services developed by private sector entrepreneurs to make requests.
Train FOIA officers
Simple, intuitive software that makes the work of tracking, processing and disclosing requests will make the job of FOIA officers easier. That doesn’t absolve agencies from ensuring that everyone is using that software, which means that training has to be mandatory. If OIP finds that a given agency isn’t training its staff, it shouldn’t just share that fact in a report: Justice needs to proactively lead.
Open the data, proactively disclose it
There’s no doubt that improved FOIA software and proactive disclosure of frequently requested records and data online should slow or even reverse the rising tide of inbound requests. If Congress and the next administration wants to see positive progress, every agency will need to focus on proactively disclosing records and improving the capacity of agencies to respond. Given research showing how commercial entities are dominating the landscape of FOIA requests for some agencies, focusing on disclosing the data sets they request will unlock the desired economic outcomes the Obama administration has frequently touted and reduce the load on FOIA officers.
This would be significantly aided by improving the internal knowledge management practices of agencies, particularly with respect to completing and maintaining the enterprise data inventories mandated by President Obama’s 2013 Executive Order and ensuring that data is born open from the beginning.
While human discretion under the FOIA will continue to be both helpful and a hindrance for FOIA requests, no one should be told that records cannot be found, much less do not exist. While it’s inevitable that agencies involved in national security will neither confirm nor deny the existence of records, we hope to see the frequency of response diminish with further digitization.
If you have specific suggestions for this administration or the next about how agencies handle FOIA that build or add to this list, please add them in the comments or let us know over email. If we heard from you, we’ll add a follow-up post and share them.