Open, Accountable Government
Fixes Early in FOIA Process Offer Greatest Potential for Impact
by Gavin Baker, 5/7/2013
The Obama administration has released new data on the 333 lawsuits filed in 2012 under the Freedom of Information Act (FOIA). The data shows that although FOIA lawsuits can be high profile, they are rare and the vast majority of requesters never pursue litigation. But more importantly, the information indicates that FOIA reforms, currently being considered by both Congress and the administration, can generate greater improvements for public access when they address earlier stages of the FOIA process.
FOIA is a vital tool for government transparency and accountability, as it provides the public with information necessary to understand what government is doing. Under FOIA, citizens have a right to request information from federal agencies, on critical topics including food safety, compliance with environmental standards, and special interest influence in government decision making. Agencies must promptly provide the information unless it is covered by one of the law's specific exemptions, such as classified national security information. But the implementation of the law consistently falls short of open government advocates' expectations.
Access experts have argued that the law, at every stage of the process, is outdated and should be reformed. While reforms at any stage would be useful, increasing transparency earlier in the process – including before a FOIA request is ever filed – could benefit significantly more people.
The FOIA Process, by the Numbers
Statistics show that as the public looks for information, the great majority drop out at each new hurdle that they are required to overcome.
Looking Online: For most people, the process of seeking government-held information begins when a citizen decides to look online to see if the information has already been disclosed and posted on the web. In many ways, this is also the earliest step in the FOIA process. Consider each search conducted as an informal request for information. A 2010 study by the Pew Internet & American Life Project found that 82 percent of Internet users – representing 61 percent of all American adults, or approximately 143 million people – looked for information or completed a transaction on a government website in the past year, including:
- 48 percent of Internet users have looked for information about a public policy or issue online with their local, state, or federal government
- 35 percent have researched official government documents or statistics
- 25 percent have gotten advice or information from a government agency about a health or safety issue
Filing a FOIA Request: If the citizen is unable to locate the information he or she is looking for, then he or she may file a FOIA request. In fiscal year (FY) 2012, 651,254 FOIA requests were filed, according to FOIA.gov. If we consider that each request may be from a separate person (though people often file more than one request), less than half a percent of the 143 million people that looked online for government information filed FOIA requests.
Filing a FOIA Appeal: If the citizen is unsatisfied with the agency's response, then he or she may file an administrative appeal asking the agency to reconsider its decision. In FY 2012, 431,875 requests were denied in whole or in part or closed for other reasons. Despite that high rate of denials, only 11,899 administrative appeals were filed, according to FOIA.gov. That number represents less than three percent of the FOIA requests that were denied. Out of that number, 9,980 appeals affirmed the initial agency decision in whole or in part or were closed for other reasons.
Requesting Dispute Resolution: Another option for citizens unsatisfied with the agency's response, before or after filing an administrative appeal, is to seek dispute resolution services from the Office of Government Information Services (OGIS), the government's FOIA ombudsman housed in the National Archives and Records Administration. OGIS received 361 cases in FY 2012.
Agency FOIA Public Liaisons are also charged with resolving requesters' disputes, but statistics are not available on how frequently requesters seek their services.
Filing a FOIA Lawsuit: Finally, if the citizen is dissatisfied with the agency's decision on the administrative appeal, then he or she may file suit in a U.S. district court. In calendar year 2012, 333 FOIA lawsuits were filed in district courts, according to data released by the Justice Department on April 22. That number represents about three percent of the FOIA appeals that were denied in FY 2012.
Targeting Reforms for Greatest Impact
Because so many more people participate in the earlier stages of the FOIA process than in the later ones, it stands to reason that reforms to increase transparency in the earlier stages would have greater impact.
Improving the Quantity and Quality of Information Automatically Posted Online: Perhaps the greatest impact could come from reforms to improve the quantity and quality of government information posted online. If citizens are able to find the information they seek, they may not need to file a FOIA request. In addition, accessing information online is generally considered more convenient than filing a FOIA request and waiting for a response. To achieve that goal, more information must be posted online, and it must be easy for the public to find and use.
The FOIA Oversight and Implementation Act (H.R. 1211), which the House Committee on Oversight and Government Reform approved on March 20, would take useful steps to require agencies to post more information online. However, these provisions should be stronger: for instance, the bill should require agencies to post all records released under a FOIA request and clarify that judges can order agencies to publish information if required by law.
Simplifying FOIA Request Procedures: Making the procedures for filing and tracking a FOIA request simpler would also benefit a large number of people. Currently, each agency has its own address for submitting FOIA requests. Additionally, each agency has its own system of tracking numbers to allow requesters to track their request's progress – usually not automated, so requesters have to wait for a manual response to their status inquiry. H.R. 1211 would establish a single, government-wide website for the public to submit and track requests to any agency, which would considerably streamline the process.
Improving FOIA Processing: Because most FOIA requesters will not go past the agency's initial response, it is particularly important that agency processing be timely, transparent, and compliant with the law and best practices.
H.R. 1211 would tighten the standards for agencies to withhold information, but Congress should do more to narrow when exemptions can be applied. The bill would also require agencies to bring their FOIA regulations up to date, strengthen oversight and compliance mechanisms, and encourage clearer communication with requesters. Congress should consider additional reforms in each of these areas, such as assigning more specific requirements for the Justice Department to oversee agency compliance. Congress should also do more to address the complex and sometimes misused fee provisions of FOIA, such as directing the Office of Management and Budget (OMB) to update its 25-year-old guidance to agencies on how to charge fees under FOIA.
Supporting Dispute Resolution: Recent reforms establishing dispute resolution services in OGIS and agency FOIA Public Liaisons offer promise as a more accessible alternative to litigation over denied requests. However, available statistics suggest that the new mechanisms have not been widely used. H.R. 1211 would encourage agencies to resolve FOIA disputes by requiring that requesters be notified of the availability of dispute resolution services. In addition, the bill would helpfully strengthen OGIS. But the legislation's provisions should be further strengthened, such as by directing other agencies to cooperate with OGIS and ensuring that the office receives the necessary resources to carry out its work.
Ask for More Reforms, Earlier
As Congress moves forward with FOIA reform legislation and the administration considers new steps to improve FOIA processing, make sure officials know that you want as many improvements earlier in the process so more people benefit.