The FOIA officers, speaking for themselves based on their experiences and not for their agencies, say the FOIA Act, which passed the House 410-0 on Feb. 25, focuses too much on the end of the process and the consumer of the information.
Agency FOIA officers say they are the ones that the bill needs to help in many respects because the increased number of requests and expectations haven’t come with more resources yet.
Michael Binder, a technical advisor in the Air Force’s Declassification Office, said Tuesday at the American University Washington College of Law’s seventh annual Freedom of Information Day event that the bill misses the mark.
He told a panel of congressional staff members at the event that they should talk to the people who do the work every day. He said the biggest problem is the lack of resources, mainly in terms of staff needed to review the requests.
Binder said FOIA officers need help from Congress to separate the requirements for classified and unclassified documents. He said removing the 20-day response requirement for classified documents would make sense as well since it almost always takes much longer to declassify documents.
Concerns about the online portal
Two other FOIA officers from the departments of Interior and State said they are concerned about the three-year pilot to implement an online FOIA portal.
The State Department representative, again speaking for herself, said there may be unintended consequences from the creation of a new online portal. The employee told the panel that the online portal could create a larger backlog because requesters would just blanket all agencies with the same request whether or not it pertains to them.
The Interior FOIA officer also said she was concerned about the online portal. She said the bill doesn’t take into account the Section 508 requirements to make sure documents are accessible to people with disabilities.
Additionally, each of these two FOIA officers brought up the need for more resources.
The congressional panel encouraged the FOIA officers to meet with the committees to tell them about their challenges, but only addressed funding issue.
Ali Ahmed, a professional staff member for the majority of the House Oversight and Government Reform Committee, said FOIA, like every federal program, is facing the same budgetary issues.
“To the extent it plays into the considerations that went into H.R. 1211 and should play into that as we move forward with potential considerations in the Senate, we should attempt to make reforms that ultimately will spare the agency’s resources whether that’s getting ready for the digital government reforms that will improve the speed and efficiency of FOIA processing, it’s something that absolutely plays into considerations,” said Ahmed, who’s boss is committee chairman Darrell Issa (R-Calif.), the author of the FOIA Act. “But there’s a need to advance common sense reforms even now in our tight budgetary environment.”
So basically, what the staff members are saying is the FOIA Act will save agencies money. But what they may be considering is the cost to gain those efficiencies in the short term.
$20 million to implement
The Congressional Budget Office determined the FOIA Act would cost about $20 million to implement between 2014 and 2018.
CBO said the workloads of most agencies would increase to carry out the bill’s new reporting requirements. CBO also estimated that the National Archives and Records Administration would face additional costs to arrange for a new annual meeting and to establish a Chief FOIA Officers Council to review and improve the FOIA process.
In all, the FOIA Act would amend the Freedom of Information Act in 12 ways, call for the online portal and require more oversight by agency inspectors general.
Ahmed said the bill is bipartisan and tries to address areas that nearly everyone agrees needs to and can be fixed.
“It is about improving the implementation of FOIA, such as the requirement that agencies update their FOIA regulations in-line with the other laws that Congress has passed, and it’s about creating mechanisms for oversight and improving existing mechanisms for oversight so there is a continuous reform effort that doesn’t necessarily have to take place within legislation–provisions like the Chief FOIA’s Officer’s Council and the open government advisory committee,” Ahmed said. “One thing that I know Chairman Issa is particularly excited about is the Office of Government Information Services within NARA will be able to directly communicate with Congress and not have to go through the Office of Management and Budget. We think from a FOIA ombudsman perspective that is what ombudsman can do, which is take its issues with the public authority direct to the people and this case direct to the people through its representatives in Congress.”
Krista Boyd, the counsel for the minority on the Oversight and Government Reform Committee, said one of the major changes to the FOIA Act over the last year came from last year’s American University Washington College of Law event.
“The bill includes putting into FOIA statue a presumption of openness. That’s something that hasn’t been in the statute before,” Boyd said. “There was a question raised about the way the bill was initially drafted. A FOIA officer raised the issue that he thought it would be confusing the way it was written initially, and if he was reading it, he would be confused in how to interpret it. We really took that comment to heart. We had some other feedback and changed the language of the bill to continue to include the presumption of openness, but to put it in a different place in the statute and word it in a way that is easier to understand and easier to implement. It includes specifically that if information is prohibited to be disclosed under other laws, we are not changing that.”
Another change is the open government advisory committee to explore ways to improve transparency.
Momentum building for reforms
Now that the FOIA Act passed the House, the Senate has begun reviewing that version and deciding where to go.
The Senate Judiciary Committee held a hearing on FOIA March 11 and from that hearing and other research, Senate committee staff members say they are excited about improving FOIA.
“In the recent hearing, it became very clear that one of the areas that needs to be addressed is exemptions, particularly B5 and B3 exemptions. I can’t say what that would look like or for sure that would be there, but it would be something that we are going to consider and try to advance as much as possible,” said Lauren Barlow, counsel for the majority on Senate Judiciary Committee. “Another important issue is the preemptive disclosure. Given how easy it is to post a PDF online and open it online with a few key search terms, I think preemptive disclosure is a great way to cut down on administrative costs and get government documents to as many people as possible. I think we will look at ways at advancing that. Perhaps the House bill is sufficient, or maybe ‘we would’ bring the number of request from three to one. If anyone requests it, it should be available to everyone.”
B3 exemptions prohibit information from being disclosed through FOIA that under another statue, such as the Civil Service Reform Act and the Government Ethics Act, is excluded from release.
B5 exemptions deal with interagency or intra-agency communications, such as memos or policies, that otherwise wouldn’t be made public.
50-50 chance of a law
One area that legislation will not address, but the administration plans to, is FOIA standards across government. At the Judiciary Committee hearing last week, Melanie Pustay, the director of the Office of Information Policy, said Justice will lead an effort to standardize FOIA regulations.
Nathan Hallford, who is counsel for the committee’s ranking member Charles Grassley, said he’s not sure that makes sense.
“I would think that there probably is a hesitancy to standardize FOIA regulations in total,” he said. “There are probably principles that could apply across the board. Each agency varies in sizes, the types of request they handle, and I think the type of recommendation I would make is to make sure those differences are accounted for, rather than making the process more cumbersome or problematic by treating everyone the same.”
Hallford said agencies need to do a better job in updating their FOIA regulations based on changes in policies or laws.
Despite the support to update FOIA laws, the Senate staff members on the panel said there is only a 50-50 chance of the FOIA Act becoming law. The House staff members said they were 100 percent sure it would become law.