In the News
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Finding Agency FOIA Regulations a Shockingly Difficult Task
Washington, DC, March 13, 2015 – Nearly 20 years after Congress passed the Electronic Freedom of Information Act Amendments (E-FOIA), only 40 percent of agencies have followed the law's instruction for systematic posting of records released through FOIA in their electronic reading rooms, according to a new FOIA Audit released today by the National Security Archive at www.nsarchive.org to mark Sunshine Week.
The Archive team audited all federal agencies with Chief FOIA Officers as well as agency components that handle more than 500 FOIA requests a year — 165 federal offices in all — and found only 67 with online libraries populated with significant numbers of released FOIA documents and regularly updated.
Congress called on agencies to embrace disclosure and the digital era nearly two decades ago, with the passage of the 1996 "E-FOIA" amendments. The law mandated that agencies post key sets of records online, provide citizens with detailed guidance on making FOIA requests, and use new information technology to post online proactively records of significant public interest, including those already processed in response to FOIA requests and "likely to become the subject of subsequent requests."
Congress believed then, and openness advocates know now, that this kind of proactive disclosure, publishing online the results of FOIA requests as well as agency records that might be requested in the future, is the only tenable solution to FOIA backlogs and delays. Thus the National Security Archive chose to focus on the e-reading rooms of agencies in its latest audit.
Even though the majority of federal agencies have not yet embraced proactive disclosure of their FOIA releases, the Archive E-FOIA Audit did find that some real "E-Stars" exist within the federal government, serving as examples to lagging agencies that technology can be harnessed to create state-of-the art FOIA platforms. Unfortunately, our audit also found "E-Delinquents" whose abysmal web performance recalls the teletype era.
E-Stars include the Departments of Energy and State, the FBI, the Nuclear Regulatory Commission, and the agencies that have embraced the government's opt-in FOIA portal, FOIAonline, which posts digital copies of FOIA releases. E-Stars such as the Department of State have shown that even agencies wracked by FOIA delays and deplorable record keeping can have a positive FOIA impact by posting their releases proactively. The excellent search functionality of the Department of State's agency-leading E-Reading Room will make State's website a pleasurable platform to browse, search, and read portions of former Secretary Clinton's emails — when they are released.
E-Delinquents include the Office of Science and Technology Policy at the White House, which, despite being mandated to advise the President on technology policy, does not embrace 21st century practices by posting any frequently requested records online. Another E-Delinquent, the Drug Enforcement Administration, insults its website's viewers by claiming that it "does not maintain records appropriate for FOIA Library at this time."
"The presumption of openness requires the presumption of posting," said Archive director Tom Blanton. "For the new generation, if it's not online, it does not exist."
The National Security Archive has conducted fourteen FOIA Audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:
The federal government has made some progress moving into the digital era. The National Security Archive's last E-FOIA Audit in 2007, " File Not Found," reported that only one in five federal agencies had put online all of the specific requirements mentioned in the E-FOIA amendments, such as guidance on making requests, contact information, and processing regulations. The new E-FOIA Audit finds the number of agencies that have checked those boxes is now much higher — 100 out of 165 — though many (66 in 165) have posted just the bare minimum, especially when posting FOIA responses. An additional 33 agencies even now do not post these types of records at all, clearly thwarting the law's intent.
THE E-STARS: BEST OVERALL AGENCIES
In alphabetical order
Department of Energy: The Department of Energy won its "E-Star" for both its well-maintained DOE FOIA portal that consists of documents previously released under the FOIA, as well as its frequently requested records page found in the "Documents" section.
Department of State: The Department of State earned its "E-Star" status for its proactive posting of over 100,000 documents requested under the FOIA, which it updates quarterly. (One positive from Secretary Clinton's "emailgate" is that the State Department library will allow excellent search and browsing capabilities!)
Federal Bureau of Investigation: The FBI's searchable "Vault" of previously requested documents and its "Hot Topic" documents page are two of the reasons it won an "E-Star."
The FOIAonline Members (Department of Commerce, Environmental Protection Agency, Federal Labor Relations Authority, Merit Systems Protection Board, National Archives and Records Administration, Pension Benefit Guaranty Corporation, Department of the Navy, General Services Administration, Small Business Administration, U.S. Citizenship and Immigration Services, and Federal Communications Commission) won their "E-Star" by making past requests and releases searchable via FOIAonline. FOIAonline also allows users to submit their FOIA requests digitally.
Nuclear Regulatory Commission: The NRC won its "E-Star" for posting lists of closed FOIA requests that link to released documents.
THE E-DELINQUENTS: WORST OVERALL AGENCIES
In alphabetical order
Drug Enforcement Administration: The DEA earned its "E-Delinquent" demerit by informing viewers it "does not maintain records appropriate for FOIA Library at this time," a claim that seems unlikely.
Equal Employment Opportunity Commission: The EEOC earned its "E-Delinquent" status by only maintaining a physical FOIA library, not even an Electronic Reading Room per the 1996 E FOIA requirements, making it impossible for the public to view previously requested records.
National Capital Planning Commission: The National Capital Planning Commission had a section reserved for frequently requested documents, but also claimed to have "none at this time."
National Protection and Programs Directorate: In a first, the National Protection and Programs Directorate, a component of the Department of Homeland Security, appears to have no FOIA page. Period.
Office of Science and Technology Policy: Despite being mandated to advise the White House on technology policy, OSTP fails to embrace 21st century FOIA practices and does not post frequently requested records online.
Are Agencies Posting FOIA Releases Online?
Currently, many E-Delinquent FOIA offices waste valuable resources by refusing to embrace the open government principle of posting FOIA releases online. Many FOIA experts currently spend valuable time searching for, reviewing, redacting, and releasing documents to an individual in response to a FOIA request, only to print out an analog version of the document, which may never even be opened — much less published — by its recipient. Posting information digitally will guarantee that the fruits of the requester's and FOIA office's labor will become available to the wider public, and that the agency won't have to conduct a similar search and review for another requester in the future.
Despite static resources, and frequently increasing FOIA backlogs, FOIA "E-Stars" like the Department of State and the FBI have proven that by embracing FOIA's principles of proactive disclosure and twenty-first century technology, even agency FOIA programs marred by over-secrecy (FBI) and exceedingly long wait times (State) can succeed at vastly expanding the amount of information the public has access to, and guarantee that FOIA resources are not wasted processing documents that become lost, gathering dust in desk drawers.
The websites of other E Stars, including FOIAOnline.gov and Online Public Access, the electronic NARA catalogue where Presidential library records are collectively made available, successfully post massive volumes of FOIA releases. The websites, however, are in need of a facelift. To locate a specific agency's records on FOIAOnline.gov, a user must determine and enter a search term likely to retrieve the agency's records. It would be preferable if there was a search function guaranteed to retrieve all of an agency's FOIA responses, rather than requiring the user to enter a broad term they hope will encompass all of the agency's FOIA releases.
Online Public Access similarly posts an enormous amount of data from all the presidential libraries conveniently searchable in one spot. However, the NARA site does not currently have a feature that allows users to search specifically for FOIA releases. Neither of these sites has a guide for effective searching, much less the "spread sheet style" ability to list and sort documents by a variety of fields (including date created) that is found in the Department of State's FOIA reading room. While FOIAonline and Online Public Access have already done the heavy lift of uploading FOIA releases online, they must now make the data easily searchable and browsable by their users.
While the idea of posting all released documents online is broadly embraced by the requester community, some have postulated (usually journalists) that posting documents online — especially in real time as they are released to FOIA requesters — may be detrimental to the investigative process or the ability of a journalist to get an exclusive. However, the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole. Additionally, FOIA request logs are already posted online, providing the public an idea of what's been requested, released, and who filed the request; a natural follow-through is to actually post the documents themselves. Perhaps the best method that addresses both journalistic and FOIA advocates concerns' is to require the documents be posted online, but not immediately. Currently, the Department of State posts FOIA'd documents quarterly.
Excuses Agencies Give for Poor E-Performance
Justice Department guidance undermines the statute. Currently, the FOIA stipulates that documents "likely to become the subject of subsequent requests" must be posted by agencies somewhere in their electronic reading rooms. The Department of Justice's Office of Information Policy defines these records as "frequently requested records… or those which have been released three or more times to FOIA requesters." Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law. Troublingly, both the current House and Senate FOIA bills include language that codifies the instructions from the Department of Justice.
The National Security Archive believes the addition of this "three or more times" language actually harms the intent of the Freedom of Information Act as it will give agencies an easy excuse ("not requested three times yet!") not to proactively post documents that agency FOIA offices have already spent time, money, and energy processing. We have formally suggested alternate language requiring that agencies generally post "all records, regardless of form or format that have been released in response to a FOIA request."
Disabilities Compliance. Despite the E-FOIA Act, many government agencies do not embrace the idea of posting their FOIA responses online. The most common reason agencies give is that it is difficult to post documents in a format that complies with the Americans with Disabilities Act, also referred to as being "508 compliant," and the 1998 Amendments to the Rehabilitation Act that require federal agencies "to make their electronic and information technology (EIT) accessible to people with disabilities."
E-Star agencies, however, have proven that 508 compliance is no barrier when the agency has a will to post. All documents posted on FOIAonline are 508 compliant, as are the documents posted by the Department of Defense and the Department of State. In fact, every document created electronically by the US government after 1998 should already be 508 compliant. Even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat, according to this Department of Homeland Security guide (essentially OCRing the text, and including information about where non-textual fields appear). Even if agencies are insistent it is too difficult to OCR older documents that were scanned from paper, they cannot use that excuse with digital records.
Privacy. Another commonly articulated concern about posting FOIA releases online is that doing so could inadvertently disclose private information from "first person" FOIA requests. This is a valid concern, and this subset of FOIA requests should not be posted online. (The Justice Department identified "first party" requester rights in 1989. Essentially agencies cannot use the b(6) privacy exemption to redact information if a person requests it for him or herself. An example of a "first person" FOIA would be a person's request for his own immigration file.)
Cost and Waste of Resources. There is also a belief that there is little public interest in the majority of FOIA requests processed, and hence it is a waste of resources to post them. This thinking runs counter to the governing principle of the Freedom of Information Act: that government information belongs to US citizens, not US agencies. As such, the reason that a person requests information is immaterial as the agency processes the request; the "interest factor" of a document should also be immaterial when an agency is required to post it online. Some think that posting FOIA releases online is not cost effective. In fact, the opposite is true. It's not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail it to the requester and have them slip it into their desk drawer and forget about it. That is a waste of resources. The released document should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track. The State Department earned its "E-Star" status demonstrating this very principle, and spent no new funds and did not hire contractors to build its Electronic Reading Room, instead it built a self-sustaining platform that will save the agency time and money going forward.
In general, posting documents as they're released underscores that these documents belong to the public; enriches debates on important policy issues; eliminates processing of duplicate FOIA requests; and — most importantly in this era of austerity — saves money.