Justice Department Raises the Standards for the Freedom of Information Act, One Step at a Time

Oversight of how federal agencies implement the Freedom of Information Act (FOIA) is critical to ensuring the public has robust access to government records. The Justice Department's Office of Information Policy (OIP) recently issued its annual assessment of how well agencies are processing FOIA requests and announced plans to substantially improve its assessment measures next year. The more robust assessment tool will better hold agencies accountable for providing information to the public.

Under the Freedom of Information Act, anyone may request information from a federal agency on critical topics like food safety, compliance with environmental standards, and special interest influence in government decision making. The act is the cornerstone of government transparency. Agencies are required by law to promptly provide the information requested, unless it is specifically exempted, such as classified national security information.

The Justice Department's 2013 Assessment

In August, the unit with the Department of Justice (DOJ) responsible for FOIA oversight released its assessment of agency progress in processing FOIA requests in 2013. The assessment rates agencies' performance on specific implementation milestones as green, yellow, or red – meaning the agency met, partially met, or did not meet the milestones, respectively.

The first assessment was published in 2011 for a limited set of agencies; it expanded to all agencies in 2012. The milestones have evolved from year to year but have always addressed five broad elements of FOIA processing:

  1. Applying the "presumption of openness," the principle that transparency should be the default and secrecy a rare exception;
  2. Establishing effective systems within an agency for responding to FOIA requests;
  3. Making information available proactively, in advance of formal requests;
  4. Utilizing technology to increase efficiency; and
  5. Reducing the backlog of overdue requests and improving the timeliness of responses.

Most of the milestones address questions about the way the agency manages requests, such as whether the agency had appropriate staffing levels for responding to FOIA requests. Other milestones focus on whether the agency met deadlines for processing requests and how frequently the agency denied requests.

Results of the 2013 Assessment

In general, agencies met the 15 milestones in the 2013 assessment tool. The average milestone was met by 80 out of 99 agencies. The two milestones with the highest score, which were both met by 98/99 agencies, showed that agency staff have sufficient technological support to process requests and that agencies were adding new information to their websites in the past year. The milestone with the lowest score, which was met by only 61 agencies, had to do with reducing the number of backlogged requests: 38 agencies (38 percent) failed to reduce their backlogs.

A comparison to last year's scores shows modest progress. Generally, government-wide performance in achieving the FOIA milestones did not change considerably from 2012, though individual agencies had minor changes in performance that generally offset each other. However, two milestones had sizable changes compared to last year. First, 13 more agencies reported utilizing advanced technology to improve FOIA processing. The increased adoption of advanced technology is a welcome development that could make FOIA processing more efficient and faster.

On the other hand, 19 fewer agencies reported making any discretionary disclosures. Sometimes, agencies have the option to release requested documents when the information technically falls within a disclosure exemption. This is particularly the case with the exemption that protects a government interest – for instance, inter-agency memos or internal rules. When agencies opt to release records that could have been withheld under such exemptions, it is called a discretionary disclosure.

The reason for the drop in discretionary disclosures is not immediately clear. However, it may be the unexpected result of a recent U.S. Supreme Court ruling that limited how broadly the internal rules exemption could be applied. The internal rules exemption, among the highest-used exemptions just a few years ago, has been almost entirely eliminated in the aftermath of the ruling. It may be that agencies previously released some information when the exemption was still widely used and counted the release as “discretionary,” while such records are now considered mandatory disclosures. However, if this is not the cause, then the lower number of agencies making discretionary disclosures could raise concerns about agencies overzealously withholding information from the public when they could choose to disclose.

More Detailed Assessment for 2014

The 2013 assessment included several improvements from past years. For instance, there were summary scores for each milestone, making it immediately clear how many agencies earned each score. For the first time, the assessment data was released in an open, machine-readable format, which will facilitate external research and analysis of the data. And, on Sept. 19, new reporting guidelines were released describing bigger improvements planned for next year's assessment.

Most significantly, the 2014 assessment will assign an overall score for each agency. For the first time, each agency will have an at-a-glance indicator of the overall state of its FOIA implementation. Having a single score should be a useful oversight tool and may cultivate a more competitive environment on FOIA performance. If agency leaders are loathe to be ranked among the worst performers, they may encourage reforms or allocate additional resources to ensure they are not at the bottom of the list.

In an expanded questionnaire, agencies will now have to report whether or not they adjudicate requests for expedited processing within the law's 10-day deadline. Other new questions ask about the process an agency uses to make discretionary releases of requested records, its handling of referrals and consultations with other agencies, its procedures for proactive disclosure of information, its personnel practices, its utilization of dispute resolution services, and its timeliness in communicating with requesters.

In addition, the new questionnaire asks for more detailed responses from agencies. For several issues, if agencies fail to achieve the milestone, the guidelines ask agencies to provide plans for how they will improve their performance. Asking for such plans should bring an increased measure of accountability by reinforcing that repeated poor performance cannot continue indefinitely.

Toward Better Oversight of FOIA Implementation

OIP deserves credit for continuing to develop its assessment into an increasingly more useful exercise and thus driving improvements in implementation. As the assessment is further developed, OIP should look for ways to address more elusive concerns about agency activities under FOIA, such as the possible excessive use of some exemptions to withhold public information.

Looking forward, Congress should clarify its expectations for OIP and its role in FOIA oversight. For its assessments to carry weight, OIP needs to have the appropriate authority and independence to exercise robust oversight. Strengthening oversight will bolster the FOIA system and help ensure that FOIA delivers the transparency that the American people deserve.

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