As the Department of Defense’s Chief of FOIA Policy, Jim Hogan helps oversee the processes that manage the roughly 60,000 requests the DoD sees each year. For him, it all started 20 years ago when, as an active duty officer in the Air Force, he made the jump to processing FOIA requests.
“I’d never heard of it, but it looked like an attractive job and I took it,” he said. He retired six years later, but then came back as a civilian, enjoying not only the opportunity to review old documents, but to put his graduate degree in philosophy to work.
“A lot of what we do is not black and white but grey,” he said. “I don’t know if I had any expectations, but I was just looking for something different to do, and after a few weeks, I really enjoyed it. You can see things get accomplished, cases closed, and happy requesters.”
Need to get in touch regarding questions about the Department of Defense FOIA process? Hogan says to reach out to his office at 571-372-0462 or by email at OSD.FOIAPolicy@mail.mil.
Below is a lightly edited transcript where Hogan shares what it’s like to be on the other side of the request.
What do you wish requesters knew about how a FOIA officer actually works, or about FOIA in general?
It’s not a fast process, and we have delays. FOIA officers don’t like delays either, they want to get this stuff out. I have a few I would say that are almost obsessive-compulsive with getting this stuff out, and they get frustrated when it doesn’t come through. A lot of FOIA officers have large workloads, and large backlogs. Much of the government, almost all the government, has limiting resources right now. Any FOIA requester should understand that their request is only one of many requests that may be in that office.
FOIA officers have to work them first in, first out.
The broader the request, the longer it’ll take to process, that’s just the way it is. Even electronic records are sometimes difficult to find, it depends on how well the action officer and the staff organizes their files. Additionally, many times it’s necessary to ask another agency to participate in our review process – and this adds even more time. We action officers share the same frustrations that FOIA requesters do. That’s one thing to know.
How many people are usually involved in a given request? Can you outline how a request goes from an initial query to final result?
It’s really depends on the component. At the DoD, let’s say it’s at a military installation, it may only be two or three people. In the Pentagon it may be more. For example, the OSD FOIA action officer, will have their Point of Contact (POC) if they know it goes to a certain part of the Pentagon. They have a POC there that may send it out to the subject matter expert within their office, who will then search for the information.
That subject matter expert may then coordinate with the initial denial authority. It could be three or four people, and if they have their attorney look at it, it could be a fifth person.
It also depends on who created it. Usually, the initial denial authorities are senior enough that they didn’t create it. Somebody else on their staff did. They don’t usually see it until the process is all done, the records manager and the subject manager experts will find the documents and make their recommendations to the initial denial authority.
It may be the case that we have a document that has State Department equities in it, and from there it’s a consultation process, and it has to go through their process also.
How much time might each person kind of spend with that? I think people are used to searching their Gmail account, and imagine it’s something that quick.
I couldn’t really tell you that, it depends primarily on how many documents the requester is asking for. The bigger the request, the broader the request, the longer it’s going to take. That is one reason why we have delays, because it takes someone to find it, then to review it, and go through that process. How long they spend on the request, I couldn’t answer that. Again, it would depend on the size of the request.
I know personally, I’ve had requests for my emails, and it depends on the subject, but my stuff’s organized fairly well so it won’t take me that long to get it and review it. It depends again on the broadness, how broad the request is.
What’s the most interesting request that you’ve seen kind of come through?
I’ve reviewed or processed thousands of requests in 20 years. What’s more interesting to me are not the requests but the documents I see. I’ve seen papers signed by Lieutenant Colonel Colin Powell when he was a White House Fellow at OMB during the Nixon Administration. Once I reviewed a document from World War II, it’s the only one I’ve ever reviewed from World War II, and it was signed by a Navy intelligence officer, Lieutenant Commander Douglas Fairbanks, Jr. Just to see that was interesting.
One of the more interesting documents I’ve reviewed was about 14 years ago, it was a referral from the Reagan Library, and it was someone requested the actual memo written by President Reagan’s military advisor during the assassination attempt of President Reagan. This officer was responsible for communications and other issues, within a day he wrote down everything that happened.
That document was still completely classified because anything connected to the President’s communications, etc., will be classified. It was an interesting document to see, what this person went through during the assassination attempt. Unfortunately, the public never gets to see it. Again, it’s the documents, and not the requests, that are more interesting.
Why does FOIA matter now, to both agencies and the public? What makes it an important process still?
I think it’s all about two ideas that go hand in hand, transparency and accountability. As government employees, we have to remember that we are accountable to the public for our performance.
The public has a right to the documents, and of course that right to the documents can only be overridden by a valid application of a FOIA exemption. To me, again, transparency and accountability: Government employees must understand that.
Requesters are often frustrated by what seems like inadequate or ancient technology used in a lot of cases during the FOIA process. Does it feel that way on the inside, or is there something else going on there?
There’s a couple of issues, one is records management, which is sort of separate from what we do. I look at processing.
We like to think in the DoD we’re among the first in the government to implement new technology in FOIA processing. We have some very good electronic document management systems, some vendor-supplied, some home-grown, I think that are useful. We’ve been using on-screen redaction software since it was first available, we have several means of transferring documents immediately among DoD components - beyond email. If you have to transfer a few thousand pages from one part of the world to another, we can do that on different classification systems.
We were the first ones in the government to be able to do that and implement it. The challenge is more making sure our FOIA officers are aware of the technology available to them, so they can become more efficient. For example, I know some agencies are using e-discovery software on processing FOIA. We’re looking into doing this in the DOD because we think that could become more efficient.
How big a component is training, in terms of making sure that FOIA officers are up to speed with what the agency can do?
Once a month, I try to hold a FOIA chat online. We have a DoD online system where people can hold meetings and conduct training. What we do is get on and discuss any FOIA issues going on in the DoD; we have usually about 100 people on from around the world.
They ask questions, and I tell them what’s going on. I’ve several times said, “Here’s the technology that’s available for you.” Additionally, we do 3-day training seminars on a yearly, which weve been doing for about 5 to 6 years at different geographical locations around the country, and even around the world. During these seminars, we try to have a class on technology, “Here’s what’s available for you.” We tell people “Get on-screen, online redaction. Here’s how you transfer documents, you’ve got a gig of documents we’ve got to get overseas, we can do that instantaneously. Here’s how you do it safely and securely.” We have incorporated the technology into our training program so that people are aware of it. I think they are pretty much are aware. Sometimes it’s when you get new FOIA officers out there, at a military installation out in the middle nowhere, and you have to get them reeducated not only on technology but everything else going on.
I think we do a good job of getting it out there in the DoD. Sometimes we have to let other agencies know “Oh, you can use this system along with us too.” It’s getting other agencies to cooperate. Once they understand it, they love it. Working with other non-DoD agencies also is sometimes a challenge in that way.
How do you see Freedom of Information changing over the next few years?
There’s an initiative going on right now that we’re working with, it’s called the release to all pilot, that the DOJ has been looking at. We’re always looking at ways to effectively release documents. The idea behind the pilot is that once documents have been released to a FOIA requestor, can we put them on line? What are the issues with putting everything online? We’re going through that, and just seeing the resource implications and what that really means.
We’re also looking at several open data initiatives to enhance the US Government FOIA program. We’re looking at those initiatives primarily because we think that open government and open data may be changing the way that people look at FOIA over the next few years.
Do you see them as sort of complimentary?
I’m not an expert on open data, but it’s a part of our office. I look at it as open data being another way to help the public understand, “Here’s what the government’s doing, here’s what the DoD is doing.”
Also it’s a way to take a step further than the FOIA, because especially for other agencies — maybe not so much for the DOD - it’s a way for agencies to get feedback from the public on performance and have a better understanding of how they work. I think for regulatory agencies, open data is probably a lot more valuable than for the DOD in that respect.
This is a little redundant, but can you talk about some of your office’s specific initiatives to improve FOIA?
Primarily the initiative right now is the release to all pilot project. We’re looking at the feasibility of posting everything online. We have quite a few components involved in working with DOJ. I was really happy that we got as many components as we could. It seems like an easy issue to tackle, but as with many things, there are resource implications. That’s what we’re looking at right now with the project. If we commit resources to posting online, is that going to take away resources processing FOIA? The project willll be done in a few months, we’ll just see what we have and see what we need to go forward with it.
How much judgement comes into play when redactions are made, and is it likely that two officers would redact a document differently?
Some exemptions can be applied very objectively, because there’s clear case law. For example, Exemption 1: if it’s classified, it’s classified. Exemptions 6 and 7c can be fairly objectively applied, but having said that, there’s some exemptions that require more consultation and review. There can be policy to promote the discretionary release of records, even if exemptions apply. It’s best to have many eyes looking at a document before its release to consider all of the requirements and policies that apply.
Is it likely that two officers would redact a document differently? I don’t think it’s likely. Is it possible? Yes. That’s why you have multiple people looking at it. What is the best way to provide the maximum amount of information to the public, yet at the same time protect information that we can legally protect by law and has a harm to its release? That gets back to sort of your question before, how many people are involved? Sometimes the more the better. We don’t want to put too many on it, but sometimes it’s better to bounce ideas off of other analysts … Especially if it’s a complicated document.
Do you see different types of requesters than you did a few years ago?
I would say still the same types. You have the commercial requesters, you have public interest groups … in the DoD a lot of times, we have next of kin.
Or, for example, we might have some kind of incident in a military installation, somebody wants to request information about that. I would say the same types of information, same types of requesters for the past 20 years. However, what has changed are the types of journalists. Usually, journalists understand the limitations of FOIA, and accordingly are very selective in its use. But, I would say there’s more requesters who refer to themselves as journalists such as your organization, MuckRock.
Your type of organization did not exist 20 years ago. There’s more organizations such as MuckRock, because personally I think the journalism career field as a profession has changed in 20 years. It’s changing, but yet, at the headquarters level the same things are being asked, usually policy-related information. Same types of requesters, same interest. But, I think there’s also a lot more policy-related issues in the government that people are interested in.
When you say the journalistic field has changed in the last 20 years, do you think there’s fewer requesters from the journalistic community, or just different types of journalistic requesters?
I think it’s just different types, and this is going off the top of my head here. 20 years ago it was what I referred to as “mainstream” media, such as ABC, NBC, CBS, New York Times, Wall Street Journal, requesters like that.
I don’t want to say its necessarily social media availability, but as Internet availability has evolved and it’s easier for someone to have a platform, a valid platform, as you could say, the journalism career field has changed and evolved - it’s a different set of people than it was 20 years ago. I think that there are different requirements to be accepted as a journalist. It’s had an effect on us too. I would say there is an increased number of people who claim to be journalists because it’s easier for them to have a means to disseminate information. You don’t get all that many requests, I believe, from what was once referred to as mainstream journalism because, again, FOIA is not an efficient way to get information quickly. Again, right now I don’t advise on active requests, and when I say mainstream, I mean the ones that were in existence 20 years ago. I don’t think they’re using FOIA as much.
Do you think FOIA’s becoming better known to the general public?
I think so, I definitely think so. It’s interesting, I read an article in the paper, and I appreciate every time I see it written “We obtained this through the Freedom of Information Act.” You see that quite often now in articles online, on how they received information. I think the public’s become aware of that, they know it’s there. I don’t know if the public quite really understands what it means, how they can take advantage of it, and also, I think their expectations are, as you know, I make a FOIA request, I should be able to get this stuff within a few weeks.
We would love for it to be fast, but I don’t know if it ever really could be fast.
Anything else you want to share with people about FOIA?
I think it’s important for the public and for FOIA requesters to know that FOIA officers are human, and the FOIA officers want to serve the requester with a quality product. For FOIA requesters, be willing to work with your FOIA officer and listen to them when they have suggestions on how to, for example, properly word a request so they can get what they want in a reasonable amount of time. Many FOIA officers within the DoD also work on privacy and records management issues, and FOIA may not be their sole job. That’s true especially out in the field. Treat them with respect, and the same thing I ask FOIA officers do, treat FOIA requesters with respect. Let the FOIA officer know you appreciate it, and once in a while, find out who the boss is, send them a note saying “Hey, I appreciate what they did.” I know when a FOIA officer gets that note of appreciation, or it goes to a supervisor, it makes their day. A lot of times, they’re out in the field, and they’re rather low ranking. It’s sort of a thankless job out there, so just thank them. That will make a big difference.
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