Amy Bennett is the Assistant Director at OpenTheGovernment.org, a Washington D.C.-based coalition that advocates for government transparency. Last month, Bennett testified before the Senate Judiciary Committee to call for constraints on FOIA exemptions and to push for the the expansion of the Office of Government Information Services (OGIS). For this week’s Requester’s Voice, MuckRock spoke with Bennett about her recommendations to the Judiciary Committee for meaningful FOIA reform.
What got you interested in FOIA?
I work at an organization called OpentheGovernment.org. It’s a coalition, so we’re a kind of organizing body of about 90 organizations that all care in some way about openness and accountability. We include groups like environmental groups who need access to information in the water and in the air, journalist groups who obviously care about access because they have to write stories about what the government’s doing, and general good government groups that believe openness leads to accountability which leads to better government.
So FOIA is, of course, one of the most important issues that we work on, because it’s a keystone of open government laws. It’s the only thing that assures us that we can have access to records that the government might want to keep secret because they show illegality or some sort of embarrassing information.
What would you say are the most important steps to take at this point for improving FOIA? Do you have personal frustrations with the FOIA process?
I’ve had several frustrating personal FOIA experiences.
My introduction to FOIA was purely through policy. We were talking about bills that were moving through Congress that would have created new exemptions, and I was talking more and more with actual FOIA requesters. After hearing their stories about all the kinds of frustrations, I set up a blog where I sent out to seventeen different agencies identical requests, and then I updated the blog to show what the experience was with each agency.
I specifically chose a type of record that each agency should be able to locate in a pretty quick time, because I didn’t want to have requests that were gumming up the works for everybody else. I thought it would be useful, both for me learning what all the requesters go through and making it public, all of the travails of going through the experience.
Some agencies worked really well: I sent in my form electronically, and a couple weeks later they sent me the requested document via email, which of course is always better. But then with some of the agencies, it was an absolute nightmare. One of them I would point to was at the Department of Defense.
I started this project a year and a half ago, and actually just last week I finally got records from the Department of Defense. It reminded me to go back and look at what had happened with the Department of Defense. I figured out that at every single step of the process, something that should not have happened happened.
I specifically chose a record that should be easy for agencies to process, and for the most part, agencies split up their queues into simple and complex requests. When I submitted to DoD, they told me that it was a complex request and that I had to call them so that I could narrow the scope of request, and that there would be all these fees attached.
I called them and the guy says, “Oh, this should be a really simple request to fill. Don’t worry about all that language. That’s just something we put in every response we send out.” Which is totally contrary to both the requirements of the law and the spirit of the FOIA. Not to mention it wastes my time having to call him and it wastes his time having to take that phone call.
The second kind of frustrating thing was when I talked to the gentleman who was processing the request. He said, “You know, I don’t think that there’s anything that’s going to be [any trouble] in here, and we should actually get this out to you in the next couple of days.” That was a year and a half ago.
The insistence on using the mail system is one of the most frustrating things for requesters.
The State Department during this little project also mailed me the records, only they spent 16 dollars sending it via Certified Mail, which as a taxpayer is just utterly frustrating. An email would be free. And you can only imagine how those costs add up. Mine was a fairly small report, so if they’re sending back a large amount of records via registered mail, I can only imagine how much they spend on mailing requests back when the default should be that they email them to you.
The Department of Labor both emails and sends you a hard copy version. The really bizarre thing is I actually got the copy through the mail from Labor before I got the email. Maybe it was stuck in the tubes …
The Department of Health and Human Services has the same problem. And actually I still don’t have any records from them. It’s only been a year and a half, though.
I expected that it would take maybe six months to get them all back, because we all know that there are delays in the process, but a year and a half to get a report that should be easy to locate and doesn’t have any sort of sensitive information in it is really a bit much. So HHS, whenever they get a request in, sends requesters a hand-addressed postcard that has the tracking number on it.
This is the state of technology in the federal government.
It’s really one of the most frustrating things about FOIA that the federal government puts bureaucracy into place so they can ensure that people are getting the same response, and it’s supposed to build in checks and balances on how the government operates. But if you build up all this bureaucracy and you end up getting totally different responses, it’s just mind-boggling and frustrating.
At a certain point you start to think that they set it up this way because they don’t want to answer FOIA requests. And that’s so contrary to the spirit of democracy. The public needs information if we’re going to make good choices about how we want to be governed.
You mentioned in your testimony the requirement involving frequently requested documents.
We fight this all the time with federal agencies. We try to convince them, “You know, your FOIA logs are actually really good sources of information.” So if you notice that people are requesting a whole bunch of one type of record, you need to talk to your records management officers and your CIO counsel and figure out how you can go ahead and put those records out without anybody having to file a FOIA. And then it will lessen the burden on the FOIA office. Very few offices are moving. Some have, with very good results, but it’s not something that every agency has embraced.
The 1996 Amendment to FOIA was supposed to be moving toward the online world. Unfortunately, it didn’t work that way when it came down to actual implementation. The law says that frequently requested records must be put online in electronic reading rooms.
The Office of Management and Budget (OMB) defined “frequently requested” as three or more times. Which is all fine, except that agencies don’t actually have a system to track how many times a record has been requested, so it’s completely useless. It’s another guideline where they have no way of actually checking that agencies are actually following.
FOIA is a public access law. The way that it works right now, agencies are sending back records to one person and that person can decide to file them away in a desk drawer or be buried with them. But if the federal government has already gone through the process and reviewed the records for redaction, those records should be available to any member of the public. And it’s cheap enough to host records online that that should be the way that it’s done.
One other story from this project. At the Department of Homeland Security, I never got any sort of an acknowledgment or a response. So I called them and they said, “Oh we don’t seem to have any record of that. Why don’t you refile?” So I refile, I wait a couple more weeks, I still haven’t gotten any sort of a response, so I call them again, and they say, “No, we don’t have that new request, but we found your old one.” And then about two weeks later I got an acknowledgment in the mail of my original request.
I don’t know what they did with that second one, and I still don’t have those records. I don’t know. I know I filed it online. They probably printed it out and put it on somebody’s desk.
How were you received by the Judiciary Committee?
The impetus for this was that the House actually passed a FOIA reform bill earlier this year. And it mostly makes some changes around processing. So it does some to strengthen OGIS, which is kind of the ombuds that is supposed to serve as a mediator between agencies and FOIA requestors. The bill also creates a chief FOIA Officer Counsel. It makes some other changes that hopefully should streamline and improve the FOIA process government-wide.
But the FOIA community and a lot of advocacy groups in DC felt pretty strongly that if we were going to pass a FOIA reform bill, we actually needed to talk about some of the substance of the exemptions. Particularly with exemption 5, which covers inner- and intra-agency documents, and a couple specific privileges under there, including attorney work client privilege and the deliberative process privilege.
Exemption 5 is being applied in a particularly aggressive and expansive way. In the Federal FOIA world call we call it the “We don’t want to give it to you” exemption.
And there are also problems with Exemption 3, which is another catchall that covers anything that is required to be withheld under any other law. So we end up finding these little provisions tucked into spending bills or the National Defense Authorization Act, the Intelligence Authorization Act, that just further limit what people can request under FOIA. A lot of times we don’t actually know about them until they’ve actually passed or sometimes we don’t even know about them until somebody files a FOIA request ,and then we find out that there’s now a whole new category of information that you don’t have any access to.
We felt that any sort of a FOIA bill really needs to address those two issues, and they needed some more changes to strengthen the Government Information Services. That’s what I testified on, and what we hope and expect to see, and at least some of those issues the Senate probably will address in a bill that we understand they are working on.
Do you have any sense of when that bill will be ready?
Not at this time, but staff is working quite hard on it, so I would think this year you’re going to see an actual piece of legislation. I would say look at the statement Senator Leahy put out the week after. Senator Leahy has been one of the champions of the federal FOIA for years. He along with Senator Cornyn really championed the last amendments to the FOIA in 2007 and another change in 2009. He and Senator Cornyn are leaders on this issue in the Senate. In the statement that Senator Leahy put out for Sunshine Week, he laid out his priorities for strengthening FOIA reform and he included strengthening OGIS and narrowing Exemption 5.
Strengthening OGIS is really going to help address some of these requester problems. OGIS gives you somebody to call. OGIS can be really helpful if you can’t find anybody at a federal agency who is willing to answer the phone or if they’re not willing to have a productive discussion with you about just what it is that you’re looking for or narrowing your request. OGIS has an inside line on calling the agency and finding somebody that you can talk to, which I think makes the process work better for everybody.
And then the other part of OGIS is about actually looking at enforcement, seeing whether or not agencies are doing what they’re supposed to be doing under the law and making recommendations to Congress and the president for further reforms to FOIA to make the process work better, so that’s really one of the reasons we hone in on strengthening that office, because it is a really great resource for requesters, but it’s tiny and it has not sufficient power to make the kinds of changes that we obviously need.
In your testimony, you take issue with OGIS’s inability to report directly to Congress and the President. Why is this the case?
Since they are not an independent agency, OGIS is housed within the National Archives and Records Administration. So whenever they’re reporting to Congress, they have to go through review by the Office of Management and Budget (OMB) and that’s a whole other openness problem, because we often don’t know what kinds of changes OMB requires agencies to make in what they tell Congress. We also know that this review process takes a long time.
During a hearing last year, Senator Grassley, who’s also a great supporter of the Freedom of Information Act, asked the head of OGIS, “Just where are your recommendations?” and it turned out that they had been under OMB review for over a year, and it finally took Senator Graffley saying, “If we can’t knock these recommendations out, I’m going to drive down to OMB and pick them up myself.” That’s not how a good democracy runs.
Are there any resources that interested citizens should look into to track these issues?
OpenTheGovernment.org has a newsletter, where we frequently write about these kinds of issues. I would also say if you’re interested in tracking bills that address FOIA is some way, the Sunlight Foundation has built a tool called Scout, and if you set up an alert for anything that mentions Section 552 (which is the Freedom of Information Act’s place in the Federal Code), then it will send you an email any time a bill addresses FOIA.
OGIS also has a blog. It has really good information about best practices, both for requesters, like how you can write a good request, and for agencies.
Image via Open The Gov Facebook