Open, Accountable Government
DOJ Letter Shows Need for Stepped-Up Enforcement of Freedom of Information Act
by Gavin Baker, 6/18/2013
A new letter by Department of Justice (DOJ) officials reveals the department is engaged in limited enforcement activities under the Freedom of Information Act (FOIA). The letter responds to an inquiry from the House Committee on Oversight and Government Reform to DOJ's Office of Information Policy (OIP), which oversees agency compliance with FOIA.
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, anyone may 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. Lax enforcement mechanisms are a key factor in those performance shortcomings.
Few Tools for Accountability
The DOJ letter demonstrates that the office has undertaken many activities to encourage improved agency FOIA performance, including training, guidance, consultations, and reporting requirements. By contrast, enforcement activities remain very limited. The office reports that it receives approximately 20 "compliance inquiries" from requesters each year complaining about an agency's handling of a request, but the outcomes of those inquiries are not made public. The letter does not reference any audits, investigations, or observations made by the office to assess FOIA compliance.
The law itself provides few tools to oversee effective FOIA implementation. There are three main ways FOIA can be enforced, but currently, all of them have shortcomings.
Encourage Agency Compliance
The law directs DOJ to "encourage agency compliance" with FOIA, but it provides no further detail or specific authority to the department to ensure that this happens. Based on its recent letter, DOJ is primarily fulfilling this responsibility by providing training to agency FOIA staff, issuing guidance on recommended ways to implement the law, answering questions from agency staff, and requiring agencies to report on various aspects of their FOIA implementation.
These are undoubtedly valuable activities. For instance, the Center for Effective Government praised the office's 2012 guidance instructing agencies to shed more light on their use of FOIA's law enforcement exclusions. However, these efforts are unlikely to be sufficient to turn around a recalcitrant or poorly performing agency. For example, while reporting requirements may force an agency to disclose failures, such as backlogged requests with missed deadlines, it is not clear whether the agency would face any consequences for those shortcomings or if the DOJ has any authority to require specific corrective actions.
Task Other Agencies with Compliance Duties
The law also tasks other agencies with compliance responsibilities, but these are also limited and somewhat problematic. In 2007, Congress created the Office of Government Information Services (OGIS) within the National Archives and Records Administration to act as a FOIA ombudsman. The law directs OGIS to "review compliance" with FOIA, offer recommendations, and mediate complaints from requesters.
OGIS has assisted many requesters and issued useful recommendations, but as the agency reported in March, it has not yet undertaken the compliance aspects of its mission. "When OGIS facilitators serve as neutral third parties to assist in resolving FOIA disputes, it could be difficult for those same individuals to separately review an agency’s practices," the office stated. "As such, OGIS’s review mission would best be implemented by a separate team of OGIS staffers who do not handle complaints, but instead assess agencies’ FOIA policies, procedures, and compliance. Given OGIS’s small staff, it has not been able to establish such a team." Furthermore, open government advocates note that OGIS does not have the independence necessary to candidly offer its views on agency practices or seek compliance with the law.
Audit Agencies' FOIA Performance
In addition, the law directs the Government Accountability Office (GAO) to conduct audits and issue reports on agency FOIA implementation. These reports have been informative but infrequent: GAO has published only four reports on FOIA since 2009. For instance, in 2012, GAO reported that some agencies were not taking sufficient steps to comply with the law's requirement to post frequently requested records online. The report also found that agencies used incompatible FOIA software, even within the same cabinet department, which could contribute to delays when agencies need to consult together on a request.
New Approaches at DOJ
The DOJ letter does detail some more ambitious compliance activities. Starting in 2011, the office has prepared its own assessment of agency progress in implementing FOIA, which it expanded in 2012. The assessment includes milestones for agency performance and rates each milestone as green, yellow, or red. As it continues to evolve, this approach could prove useful for monitoring agency compliance and performance, encouraging progress, and highlighting areas in need of improvement.
In addition, for years, DOJ has received occasional complaints from requesters about agency FOIA implementation. In 2012, the office reported that it received 19 such "compliance inquiries," a number comparable to previous years. "In response to these compliance inquiries," the office stated, "OIP discussed the issues with the agency involved and, whenever appropriate, made recommendations on the steps needed to address the concern."
These compliance inquiries could potentially be a valuable tool for the agency to build upon. However, little is currently known about how DOJ handles such inquiries, as it does not report the details of those inquiries or their outcomes.
Need for Reforms
Congress should assign DOJ more specific responsibility and authority to oversee agency compliance with FOIA. DOJ should be charged with regularly listing agencies as non-compliant or poor performers, demanding compliance plans with specific measurable milestones from lagging agencies, and instituting administrative penalties. In addition, Congress and the administration should consider whether changes should be made within DOJ to ensure OIP has adequate independence to exercise oversight. OIP should continue to develop its assessments and should provide more information about its handling of compliance inquiries.
Similar challenges of independence and authority face OGIS. A FOIA reform bill approved by a House committee in March would strengthen OGIS' independence. However, Congress still needs to ensure that the office receives sufficient resources to carry out its duties, and Congress also should make clearer what sort of compliance review it expects OGIS to undertake.
An adopted amendment to that bill also would task agency inspectors general to review FOIA compliance, which could add a helpful element of oversight. The whole House has yet to take up the bill, and there is not yet a Senate companion bill.
Congress should also establish stronger tools for enforcing FOIA. The law should include stronger penalties, such as mandatory fines and automatic attorney fees recovery for agencies that force requesters to pursue lawsuits and then settle or lose in court.
Beyond reform legislation, Congress should also remain actively engaged in FOIA oversight. Just as the House Oversight Committee's inquiry yielded new insight in this case, Congress can hold agencies accountable by asking questions of its own and by directing GAO to undertake new studies.