US to Experiment With Releasing FOIA Replies

16 July 2015

The Obama administration has announced that seven agencies will be putting online their responses to most Freedom of Information requests.

The “Release-to-One: Release-to-All” pilot project will run for six months and then be evaluated, the Justice Department Office of Information Policy (OIP) said in a press release issued July 10.

The effort is “designed to test the feasibility of posting online FOIA responses so that they are available not just to the individual requester, but to the general public as well,” according to the announcement.

Reformers from nongovernmental organizations welcomed the move, with some skepticism from journalists hoping to protect FOIA-related scoops.

The Justice Department’s past positions have been seen as slowing compliance with a 1996 law ordering the release of frequently requested documents. Justice interpreted the posting requirement as applying to materials released three or more time, but many agencies failed to develop the capacity to track frequency.

Compliance with the 20-year-old law has been poor. A March 2015 audit found that out of 165 federal offices, only 40 percent of agencies (67) had posted of records released through FOIA in their electronic reading rooms. The audit was done by Nate Jones and Lauren Harper of the National Security Archive, also the publisher of FreedomInfo.org.

The DOJ announcement raised concern among some journalists that simultaneous disclosure to requesters and the public would undermine the exclusivity of stories based on FOIA requests. (See a summary of the ensuing debate by Alex Howard and an Erik Wemple article.)

The DOJ pilot project does not seem to dictate timing. The announcement says little about policy guidance or technical plans. FreedomInfo.org has submitted follow-up questions and filed a FOIA request for additional details.

Evaluation Planned at Seven Agencies

“During the pilot,” the announcement states, “we seek to answer many important questions, including: costs associated with such a policy, effect on staff time required to process requests, effect on interactions with government stakeholders, and the justification for exceptions to such a policy, such as for personal privacy. For privacy reasons, participating agencies will not post online responses to requests in which individuals seek access to information about themselves.”

Proponents of full-scale disclosure argue that it will save time and money for both the government and the public. “Routinely posting responsive documents online helps eliminate repeated searches for the same documents, ultimately helping agencies work through their FOIA backlog, avoid duplicative requests, and answer more requests,” wrote Rick Blum of The Sunshine in Government Initiative in a blog post that also touched on the timing issue.

“We think it has tremendous potential to increase transparency and give public the more information,” said Melanie Pustay, the OIP director, in an interview with Howard in The Huffington Post. She cited “implementation challenges” such as cost and staff time.

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.

Some agencies, including the EPA and the State Department, already are engaged in “Release-to-One: Release-to-All.” State issues quarterly batches of material.

Justice officials also have resisted release of FOIA’d documents with the argument that it is difficult to post documents in a format that complies with the Americans with Disabilities Act, also referred to as being “508 compliant,” and the 1998 Amendments to the Rehabilitation Act that require federal agencies “to make their electronic and information technology (EIT) accessible to people with disabilities.”

This argument has been contested.

Compliance with 508 was the topic of a meeting in February of the FOIA Advisory Committee, as described by Lauren Harper in the Archives Unredacted blog. At the meeting, David Reed from the Federal Communications Commission “challenging agencies to cite specific instances where documents could not be made 508 compliant, in order to help troubleshoot such instances going forward and eliminate 508 compliance concerns as a barrier to access.”

“In fact, all government records created today are already required to be 508-compliant, and widely-available tools like Adobe Acrobat automatically handle the task for older records with a few clicks,” said the Archive’s Jones in testimony before the House Oversight and Government Reform Committee on June 2. Release of all documents is done on FOIAOnline, a government-created request and posting system used by about a dozen agencies.

Government-Wide Library Envisioned

The notion of creating a government-wide library for FOIA responses was hinted by Pustay in her Huffington Post interview with Alex Howard. She noted having recently held a meeting with developers in the “18F” group at the General Services Administration

Pustay said, “We talked with them about government-wide library.”

The 18F group is developing and testing openFOIA, a portal that will link potential requesters to agency FOIA sites. A GSA spokesman said that 18F was not involved in the “release for one: relaase for all” project.

The 18F effort so far has not been designed as a one-stop central portal for making FOIA requests although this is an Obama administration commitment in its National Action Plan for the Open Government Partnership (See previous FreedomInfo.org article.) Justice and 18F Officials in May said building a central request portal remains a goal, but said nothing about timing or location for the portal. (See Freedominfo.org article.)

Pustay told Huffington:

We at OIP are actively working with getting people to help us get to the next level. OIP is working on it. We have actually a lot of ideas for using tech to help FOIA beyond request-making capability.

We want better search capability for records that are posted. We have a vision for having requesters to have a guided request. Just enter terms and maybe these agencies would have your records.

There is work being done on open.foia.gov, within the digital team and 18F. We’re not going to not fulfill the commitment.

Another government site, FOIA.gov, also provides links to agency FOIA sites.

Pustay hinted in the interview that something is occurring with FOIA.gov development, saying: “We continue to work not only with GSA, but have started an engagement with the digital services team that is just getting set up at DOJ. We are very optimistic. They’re just coming on board. There’s only a few. We are literally in the hiring process.”

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