DOJ Agnostic on Timing for Publishing FOIA’d Documents

21 July 2015

The Justice Department has no current position on whether first requesters should get a priority look at the documents released before they are made available to the public under a planned “release to one, release to all” policy, according to Melanie Ann Pustay, Director of the Office of Information Policy at the Justice Department.

The timing issue popped up quickly as a hot button topic for scoop-jealous journalists after Justice announced its pilot program to assess the value and costs of more online disclosure of documents released under the Freedom of Information Act. (See previous FreedomInfo.org article.) The timing of such online releases will be examined as part of the pilot program being conducted at seven agencies, Pustay said in written answers to questions submitted by FreedomInfo.org.

Q: Has Justice made suggestions on the timing of release to requesters vs. release to the public?

A. No. This is one of the areas we will be testing during the pilot. In practical terms, there will usually be some lag time between the time that records are turned over to the original requester, and when they can be scanned and coded for posting. But this is certainly an area we want to study, collect data on and get feedback from outside stakeholders, including journalists. We welcome your views.

Pustay also provided more detail on the specific units of departments and agencies that will be involved in the six-month-long study.

In addition, she described plans for future activities, saying the pilot project is an extension of DOJ efforts to promote proactive disclosure.

“In 2009, Attorney General Holder’s FOIA Guidelines encouraged agencies to `readily and systematically post information online in advance of any public request,’ “ she said. “Since 2009, OIP has required agencies to report on the steps taken to increase proactive disclosures, and just this past March our office issued new guidance on this topic.”

“So we have been working towards this for some time now by encouraging agencies to post more and more information online proactively,” according to Pustay. She continued: “The idea behind our pilot is to take this even further and to test the feasibility of posting most all FOIA responses so that the records are available to everyone. We think this has real potential to increase transparency and to further the FOIA’s goals of letting the public know what their government is doing.”

FreedomInfo.org asked if Justice has already conducted an evaluation of the experience of agencies within the existing FOIAonline system, where full release of FOIA replies is a regular practice. Pustay said Justice has met with the Environmental Protection Agency, which administers the FOIA request site used by eleven agencies. EPA is part the pilot “so we will be collecting metrics from them along with the other participating agencies,” Pustay said.

EPA System Gives Requesters Short Head Start 

Separately, EPA provided FreedomInfo.org with some detail on the timing of releases there.

Basically, the requester gets a two-hour head start before requested materials goes online. This gap occurs not because of an intentional policy, but rather because of technology.

EPA explained in an e-mail:

When EPA releases records, in response to a FOIA request, the requester receives a notification that the records have been released and available through FOIAonline. However, use of the search function can have a delay as much as 2 hours while the Endeca search index is refreshed.  The public can access these records immediately upon release if they were to go to the case and scroll through records released.

Those in the pilot differ in what they post and how they do it. One goal, Pustay said, “will be to study the resources needed for, and how their technology handles, the new task of posting additional FOIA records.”

Agencies Participating

In its original announcement, Justice indicated which departments and agencies would be participating in the study, but without saying which sub-parts would be involved. The agencies participating in the pilot are the Office of the Director of National Intelligence, the Millennium Challenge Corporation, the Environmental Protection Agency, and components or offices of the Departments of Defense, Homeland Security and Justice, and the National Archives and Records Administration, with OIP leading the effort.

Pustay supplied the complete list (bolding added):

DOJ:

Office of Justice Programs

DOD:

Office of the Secretary of Defense/Joint Staff

U.S. Northern Command

U.S. Southern Command

U.S. Strategic Command

Defense Finance and Accounting Agency

Defense Intelligence Agency

The National Guard Bureau

DHS:

DHS FOIA office plus

Office of the Secretary

CIS Ombudsman

Domestic Nuclear Detection Office,

Office of the Executive Secretary,

Office of Intergovernmental Affairs

Management Directorate

Office of Policy

Office of the General Counsel

Office of Health Affairs

Office of Legislative Affairs

Office of Public Affairs

NARA: General Counsel’s office (NARA has issued description of its participation.)

MCC: all

ODNI: all

EPA: all

Looking Ahead

Pustay said Justice is looking at a variety of enhancements to help FOIA requesters and, more broadly, to aid the public in finding answers. She said:

We have a lot of ideas for using technology to improve FOIA beyond just the request-making capability. These include, for example, tools that would assist requesters in finding the right agency for making a request, so that requesters who may not know which agency holds the records they want, can enter terms and the technology would guide them to either already posted material that might satisfy their information needs, or would direct them to the correct agency or office if, in fact, a request was needed. We also want to develop tools to improve the public’s ability to readily locate the many records that agencies are posting.

Justice is working on this with the 18F unit at the General Services Administration, she said. 18F has created a page called OpenFOIA, “which is a subdomain of FOIA.gov that we have been working on with 18F as part of our efforts to meet the NAP commitment,” Pustay said. NAP is the acronym for the National Action Plan created as part of US membership in the Open Government Partnership. One US commitment is to build a one-stop central portal for making FOIA requests, a yet-fulfilled pledge. (See previous FreedomInfo.org article.) Justice and 18F officials in May said building a central request portal remains a goal. (See Freedominfo.org article.)

The OpenFOIA site, Pustay said, “is only the beginning of our work on the NAP commitment and is only one of many additional resources we envision for FOIA.gov.” She continued: “We are actively working on building on all of these efforts right now. As you know, a consolidated request portal is only one part of our commitment. We are also looking at additional tools for our site that will further improve FOIA.”

FreedomInfo.org asked for more information about creating a “government-wide library” of FOIA responses, an idea broached by Pustay in a recent Huffington Post interview.

She responded to FreedomInfo.org:

As I said, we have a lot of ideas for using technology and improving the resources available on FOIA.gov to improve FOIA administration. We think that it is critical that we work both on increasing the amount of material that is posted online as well as on making that material easier to locate. It is for this reason that we added a “find” feature on FOIA.gov that allows requesters to search for information that has been published on government websites. Further, in 2013 OIP issued guidance to agencies on using metadata in FOIA documents posted online to build this concept of a government-wide FOIA library. As we look to improve on this type of feature we are of course interested in how we can continue to make FOIA released records and records posted in FOIA libraries more easily accessible to the public.

The guidance to which she referred (here) is titled “Using Metadata in FOIA Documents Posted Online to Lay the Foundation for Building a Government-Wide FOIA Library.”

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