The CIA and State Department are among the prominent agencies that don't allow users to submit FOIA requests directly through FOIA.gov.
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Washington, D.C., March 9, 2023 – The public still cannot submit Freedom of Information Act (FOIA) requests to the CIA or other prominent agencies through the national FOIA portal, FOIA.gov, seven years after Congress required the building of a website that allows “the public to submit a request to any agency from a single website.” Three out of four federal agencies do not even mention FOIA.gov on their individual agency websites, with many funneling FOIA requesters through independent portals with varying degrees of functionality, leaving them unaware of a more simplified way to file a FOIA request.
Those attempting to file FOIA requests with the CIA on FOIA.gov are informed that, “Currently, this agency’s FOIA system is not linked to FOIA.gov.” The CIA isn’t alone. The State Department still does not accept submissions through the portal, nor do the National Security Agency, the Department of Health and Human Services’ Inspector General, the Secret Service, the Department of Homeland Security’s Citizen and Immigration Services, or the FBI.
The 2016 FOIA Improvement Act not only required the building of a national FOIA portal, but also explicitly directed the Office of Management and Budget (OMB) and the Attorney General to “ensure the operation of a consolidated online request portal” and required OMB to “establish standards for interoperability between the consolidated portal and agency case management systems.”
While instances in which OMB has provided guidance on these issues have been few and far between, the Biden administration recently committed to improving “the user experience” of FOIA.gov as part of its Fifth U.S. Open Government National Action Plan. This plan contains the most recent U.S. commitments made under the Open Government Partnership (OGP), an international coalition that works to make governments more transparent and accountable.
The Biden administration’s commitment to improve user experience of the national FOIA portal couldn’t be more timely, given the scheduled, September 30, 2023, decommissioning of FOIAOnline, a FOIA processing and tracking website that was established by the Environmental Protection Agency and used by dozens of agencies during its height. The ballooning, government-wide FOIA backlog and calls from Congress to reduce overclassification also highlight the urgent need for a more streamlined process that will reduce inefficiencies across the government’s declassification system.
FOIAOnline’s September decommissioning begs many questions, including what agencies will do with their records currently posted to the FOIAOnline library.
The most obvious way to improve user experience would be to ensure that every agency participates and that their FOIA case management systems are interoperable with FOIA.gov.
Additional improvements include adding a universal FOIA library to the portal that contains both correspondence and document releases. FOIAOnline has a similar feature that allows users to search previous FOIA requests and disclosures, as well as an advanced search function that allows users to filter searches by exemptions used and time taken to process the request, among other useful features. The creation of such a FOIA library on a single national website would help ensure that agencies met the FOIA’s requirements to post records of public interest and encourage commonsense declassification. If a FOIA requester (or processor) could easily recognize that records on a certain subject had already been released by a government agency, it would make subsequent releases much easier and could make the filing and processing of additional FOIA requests entirely unnecessary.
A related improvement would allow users to see if the information they are searching for is already public, which is a common feature on many individual agency FOIA websites. To this end, the Department of Justice’s Office of Information Policy (OIP) recently announced that a “wizard” that uses “logic-based and machine learning tools” to help requesters identify already-public information is currently in the discovery phase.
Ensuring that every agency’s individual FOIA page informs the public about FOIA.gov would also improve usability and decrease confusion about where requesters should file requests. Agencies are required to populate their FOIA pages with certain information, including how to file a FOIA request, yet a striking three quarters of the agencies that are required to submit annual FOIA reports to the Department of Justice don’t mention FOIA.gov at all.
FOIA.gov currently doesn’t allow for the submission of FOIA appeals nor does it accept requests or appeals under the Mandatory Declassification Review (MDR) process. Considering that an interagency review board releases additional information in 75% of cases in which an appeal is filed, facilitating the appeals process should be a top priority for the portal.
Finally, the portal would be improved by not requiring users to log in separately to the individual agency’s FOIA system after filing a request through FOIA.gov. For example, if you file a FOIA request on FOIA.gov with the Centers for Disease Control and Prevention (CDC), which uses a Public Access Link (PAL) system created by FOIAXpress, you would be prompted to register again with the CDC PAL system after filing through FOIA.gov.
There are more than 40 individual agency FOIA portals and online submission forms across the government, not including the agencies that currently participate in FOIAOnline, and they differ greatly. The portal most often used by agencies is the integrated PAL / FOIAxpress system. Other systems include Deloitte's SecureRelease platform, and Tyler Technologies powered by Entellitrak. A few agencies also have portals that are entirely in-house, including the FBI’s eFOIPA, and the State Department’s portal.
The FBI, which is part of the Justice Department, doesn’t participate in FOIA.gov, instead making requesters use a separate portal. Another Justice component, the Drug Enforcement Administration, also opted out of FOIA.gov.
There are drawbacks to many of the portals. FOIAXpress, for example, requires that passwords be renewed every 30-60 days and doesn’t allow organizational accounts. Users of some web browsers are warned that the connection is not secure. The Defense Department has attempted to troubleshoot this problem with a notice on their website to use the Chrome or Firefox browsers, while the Air Force clearly states that their PAL is incompatible with Firefox. PAL also often sends automated status replies without any context, including notifying users that their request has been closed, but without the official denial letter or the required notification of appeal and mediation rights. Not surprisingly, PAL has made FOIA requesting more difficult for many users, including the National Security Archive.
Some portals work better than others. The Entellitrak system allows users to send appeals and immediately provides a tracking number, but the system does not keep track of correspondence, which can be crucial in appealing or litigating. FOIAOnline tracks correspondence and document releases, but its imminent decommissioning raises questions about what the dozen agencies that currently participate will do going forward. Of particular interest is whether these agencies will repost records that have already been published in the FOIAOnline repository in their own agency FOIA libraries.
You can file a FOIA request to most DHS components (but not CIS or the IG) through FOIA.gov, but you wouldn’t know it from their FOIA submission guide.
The DOJ recently reported that it is “working with the General Services Administration’s Office of Shared Services and Performance Improvement to develop shared business standards to help streamline technology operations” for FOIA offices, with the FOIA case management systems being of primary importance. Acquisition standards, as well as any technology that helps standardize FOIA processing and user experience from one agency to the next, has plenty of potential upsides.
However, while improving individual portals is a laudable goal, it shouldn’t detract from efforts to improve FOIA.gov.
Clear direction, guidance, and timelines from OMB and DOJ will be required for the 2016 law to be fully met and for the Biden administration to make good on its OGP commitments.
Without more enforcement, FOIA.gov risks becoming a space where only the agencies that want to participate do so, while others continue to treat the portal like a glorified FOIA directory. FOIA libraries provide a good example of what happens when there is little enforcement of FOIA’s minimum requirements. Some FOIA libraries, like the State Department’s, are robust and updated regularly with FOIA-released documents. Others contain little more than FOIA logs and agency FOIA reports, leaving requesters and processors in the dark about what has already been released.
FOIA.gov can avoid such a fate if OMB and DOJ act swiftly and decisively.
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This is the Archive’s 22nd FOIA Audit. 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 and findings from previous Archive FOIA Audits have: directly led to FOIA fixes in both the 2016 FOIA Improvement Act (25-year B5 sunset) and the Open Government Act of 2007 (requiring agencies to report their ten oldest pending requests); exposed OMB’s lack of action on FOIA fee regulations, ultimately prompting an Administrative Procedures Act lawsuit filed by Cause of Action that forced the agency to craft new (albeit lackluster) regulations; forced agencies to craft explicit customer service guidelines; led to mandates in FOIA backlog reduction; institutionalized the use of individualized FOIA tracking numbers; led to reporting requirements on the average number of days needed to process requests; and revealed the (often embarrassing) ages of the oldest pending FOIA requests—requests so old they could rent a car. The surveys include: