Department of Justice seeks public feedback on proposed Freedom of Information Act policy


While the Obama administration’s lack of overt support for Freedom of Information Act (FOIA) reform in Congress over the past several years has been notable, as was the covert opposition of the Justice Department, two elements of the White House announcements that accompanied President Obama signing reforms into law bear close attention and scrutiny.

The first is the creation of a Cross-Agency Priority (CAP) Goal for FOIA that will be co-led by the White House Office of Management and Budget (OMB), the Department of Justice and the National Archives and Records Administration. For those unfamiliar with the acronym, CAP Goals were established by the GPRA Modernization Act of 2010.

As the U.S. General Accountability Office noted in a 2014 report urging the White House to improve review of these goals:

[The law] requires the Office of Management and Budget (OMB) to coordinate with agencies to: (1) establish outcome-oriented, federal government priority goals (known as cross-agency priority, or CAP, goals) with annual and quarterly performance targets and milestones; and (2) report quarterly on a single website now known as the results achieved for each CAP goal compared to the targets.

According to the White House, the FOIA CAP Goal will “focus senior leadership attention and drive performance and accountability for improving the way in which FOIA requests are administered, and ensure that Federal departments and agencies are providing sufficient resources toward FOIA responsibilities.” The report continued, “The new CAP goal will be publicly posted on, and will have a detailed action plan, including specific metrics and milestones that will be used to gauge progress. To maintain focus on implementation, each quarter, OMB will review progress on these goals and will update with the latest results.”

While we’re cautious about how funding levels will affect and the extent to which OMB will not only push agencies to improve but dedicate funding toward helping them do so, establishing a federal governmentwide CAP Goal for FOIA is a significant achievement that has the potential to improve compliance and increase congressional capacity for oversight.

‘Release to one, release to all’

The second element 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. As Sunlight has argued, 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.

As noted in the White House fact sheet, the president has directed the new Chief FOIA Officers Council “to consider the lessons learned from the DOJ pilot program and work to develop a Federal Government policy establishing a ‘release to one is a release to all’ presumptive standard for Federal agencies when releasing records under FOIA.” The council and OMB are tasked with providing further guidance on the policy by Jan. 1, 2017, including its impact on investigative journalism, technological and resources issues.

Sunlight attended the first meeting of the Chief FOIA Officers Council on July 22 at the White House, as did representatives of the Reporters Committee for Freedom of the Press, which (naturally) reported on the event, including the negative reception that the president’s direction received by some officers present.

As I noted on Twitter, a chief FOIA officer present described the proposed policy as “frightening,” hard and likely to slow compliance. Another noted a trade-off exists here: While the public wants more information to be posted online, Section 508 requires that information to be accessible to everyone, which represents a challenge with limited resources. A third chief FOIA officer, however, noted that his agency’s optical character recognition machine had 10 percent usage and suggested that IT could play a significant role in improving disclosure.

On the last count, I suggested to the Justice Department’s Office of Information Policy (OIP) at the close of the meeting that it directs FOIA staff to Project Open Data’s resources. Given the questions, concerns and requests for help that the chief FOIA officers expressed, it’s fair to expect that limited resources combined with executive mandates have historically been a good catalyst for innovation in government. We hope that’s true here, too.

You can watch archived video of the meeting in the embed below, including remarks of Melanie Ann Pustay, the director of the OIP at the Justice Department, Andrew Mayock, the deputy director for management of OMB, and Nikki Gramian, the acting director of the Office of Information Services at the National Archives.

As Pustay noted, the Justice Department is now soliciting feedback on the proposed extension of the “Release to one, release to all” across the federal government, encouraging the public to write to Notably, the Justice Department will invite journalists and members of the public to “provide direct feedback on policy” and the second meeting of the Chief FOIA Officer’s Council on September 15th.

Please write to the Justice Department and share your feedback on how it would impact you — whether you are a government worker, journalist, advocate and/or informed citizen.