Obama’s latest FOIA reforms needed because past ones not implemented

Where is the ‘presumption of openness’ we’ve been promised?

The White House recently released its latest open government game plan, which proposes five broad reforms to the Freedom of Information Act. FOIA compliance is in dire need of remedy but President Obama’s administration still has a long way to go in order to truly claim the mantle of “most transparent administration ever.”

The president campaigned on transparency, and rarely misses the chance to tout the “presumption of openness” memo he signed in his first day on the job. Few people who submit records requests to federal agencies would say that it has made a difference for day-to-day requesters, however, and the Department of Justice, which oversees FOIA compliance, pushed hard to allow agencies to lie to requesters regarding the existence of records, despite a long and (somewhat) successful history of Glomar Responses to fill the same need without purposefully distorting the public record.

The president’s five new proposals, with our thoughts:

Improve the Customer Experience through a Consolidated Online FOIA Service
More than 100 Federal agencies are subject to FOIA. For the average requester, this can mean significant energy spent searching for the right agency and navigating its website to figure out the unique process for submitting a request to that agency. The Administration will launch a consolidated request portal that allows the public to submit a request to any Federal agency from a single site and includes additional tools to improve the customer experience. The United States will establish a task force to review current practices, seek public input, and determine the best way to implement this consolidated FOIA service.

FOIAOnline, “the” federal government’s FOIA filing portal, was a relatively well-executed launch by a team with a proven track record. It’s been a great tool for encouraging agencies to publish more, more consistently, and more completely, but it has also found resistance from most agencies even as others have used it as a tool to shut down traditional, simpler filing mechanisms. Somehow, Treasury found a way to do both, demanding electronic filers use its electronic portal while shutting down its own program with FOIAOnline in favor of an even worse, proprietary system.

While we welcome additional tools to help filers, it’s clearly not an academic concern that these portals can and will be misused, and we recommend that more modest, impactful steps forward be made that will actually benefit requesters while coming at minimal extra cost to taxpayers.

Storing FOIA request logs in a spreadsheet program, for example, instead of writing them out by hand would be a good start. So would keeping tabs on whether your current FOIA portal is operational–a month after we alerted the Army Audit Agency that its site was down, the link is still not operational.

Develop Common FOIA Regulations and Practices for Federal Agencies
Certain steps in the FOIA process are generally shared across Federal agencies. Standardizing these common aspects through a core FOIA regulation and common set of practices will make it easier for requesters to understand and navigate the FOIA process and easier for the government to keep regulations up to date. The Administration will initiate an interagency process to determine the feasibility and the potential content of a core FOIA regulation that is both applicable to all agencies and retains flexibility for agency-specific requirements.

It’s absolutely true that FOIA regulation mishmash is a headache for agencies and requesters alike, but it’s occasionally worked out in transparency’s favor. We’d like to see agencies continue to have discretion to waive fees and work with requesters in a sensible way, while helping phase out obstructive practice such as the Treasury department’s continued and inane requirement that requests be accompanied by a physical signature. Allowing agencies to keep their process and regulation adaptable to their audience makes sense: The FBI and the Special Inspector General for Afghanistan Reconstruction, for example, have very different case loads, and there should be differences. Neither should be allowed to introduce hurdles that discourage responsiveness.

Improve Internal Agency FOIA Processes
Over the past few years, several agencies have analyzed existing FOIA practices and used this information to make dramatic improvements in their backlogs and processing times, as well as to increase the proactive release of information in the public interest. The U.S. Government will scale these targeted efforts to improve the efficiency of agencies with the biggest backlogs, and to share broadly the lessons learned and strategies to further improve internal agency FOIA processes.

Last time these kinds of improvements were promised, the result appears to have been more aggressive closure of requests because agencies were marking them as too vague or otherwise unprocessable. It’s easy for the administration to doctor up numbers or reconfigure policy to make the statistics look good while doing the opposite; what we’ve failed to see is a policy of release that’s actually brought more transparency to bear.

Establish a FOIA Modernization Advisory Committee
Improvements to FOIA administration must take into account the views and interests of both requesters and the Government. The United States will therefore establish a formal FOIA Advisory Committee, comprised of government and non-governmental members of the FOIA community, to foster dialog between the Administration and requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.

This is another great goal, and one that intersects with what the administration promised to do with OGIS. Instead, requesters were given an understaffed agency with zero enforcement capability which agencies often feel free to spurn completely. Create this committee, we ask, but give it teeth.

Improve FOIA Training Across Government to Increase Efficiency
In order to efficiently and effectively respond to FOIA requests, every Federal employee — not just those in an agency’s FOIA office — should fully understand the FOIA process. The Administration will make standard e-learning training resources available for FOIA professionals and other Federal employees and encourage their use.

We whole heartedly agree with this. Training at the federal level is important, not just for FOIA officers but for all agency personnel. Just make sure the transparency keeps with Obama’s mandate for the presumption of openness, and not new ways to deflect transparency.

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Image via WhiteHouse.gov