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FOIA Update: FOIA Day Presentation

FOIA Update
Vol. XIV, No. 3

FOIA Day Presentation

The following is the full text of a presentation made by OIP Co-Director Daniel J. Metcalfe at the National Press Club's annual celebration of Freedom of Information Day this year:

I appreciate the Freedom of Information Committee's invitation to be with you here today to help commemorate James Madison's birthday as Freedom of Information Day. For the hundreds, if not thousands, of federal agency employees who are involved in the process of disclosing federal government information under the Freedom of Information Act, this day marks the importance of the Act, and of their day-to-day work under it, to our democratic system of government. Our system of government works best when its citizens are as informed as possible about government functioning. The FOIA process works best, as well, when there is clear and open communication between those who use the Act and the agency personnel who work to administer it.

This morning, I would like to first briefly describe some of the activities of the Office of Information and Privacy to promote the Freedom of Information Act's full and proper administration governmentwide. Then I will focus on two major FOIA policy subjects, the timing of agency FOIA responses and the treatment of "electronic" records, which are subjects of growing concern and which soon may be subjects of legislative FOIA reform through the cooperative efforts of all those interested in FOIA administration -- Congress, federal agencies and the FOIA-requester community as a whole.

The Office of Information and Privacy engages in a wide range of governmentwide FOIA policy activities. These include publications, training and advisory services. To keep everyone abreast of this evolving area of law, we publish three major FOIA publications -- our quarterly FOIA Update newsletter, an annual Freedom of Information Case List, and our annual "Justice Department Guide to the FOIA" -- each of which is disseminated to FOIA personnel throughout the federal government and also is made available through the Government Printing Office.

Throughout the year, we conduct an extensive series of FOIA training programs for both new and experienced FOIA personnel at all federal agencies, including specialized FOIA training sessions designed to meet the needs of individual agencies and organizations. The cornerstone of our training programs is our "Annual Update Seminar on the FOIA," for which we gather more than 500 agency representatives to review the year's developments in FOIA policy and litigation.

Additionally, we maintain what we call our "FOIA Counselor Service," through which we handle more than 2,000 calls for advice and assistance on a variety of FOIA-related matters each year. Some call this our "FOIA Hotline," because we use the telephone number 514-FOIA for it (or 514-3642, if you prefer to note it down that way). I emphasize this because I want to call your attention to a related service provided by our office--known as our FOIA "ombudsman" function -- in which we are available to assist FOIA requesters who believe that the agencies processing their FOIA requests are operating contrary to, or under a misunderstanding of, applicable legal requirements. Sometimes, we've found, simply facilitating better communication between FOIA requesters and agency FOIA personnel can clear up problems in the process. We have encouraged use of this "ombudsman" function through our FOIA Update publication, and elsewhere, and I encourage members of this organization to make use of it whenever the need arises. (I've brought along a copy of our description of it in FOIA Update to make available here today.)

The FOIA subject that might be of greatest concern to you is the longstanding problem of agency response times under the Act. When Congress amended the FOIA in 1974, it established strict 10-day response deadlines that, as it has turned out, have been honored more often in the breach. Simply put, many federal agencies, especially those dealing with high-volume FOIA demands for particularly sensitive records, have failed to meet the Act's deadlines for their FOIA requests -- and some agencies maintain large FOIA backlogs greatly exceeding those lengths of time. The reasons for this may vary somewhat from agency to agency, but at bottom it is a problem of simply too little resources being applied to handle existing FOIA workloads under the Act's strict time limits -- an extremely difficult problem to solve.

We regularly discuss this problem in our FOIA training sessions and often survey the class participants on the backlog situations at their individual agencies. We ask: How many of you come from an agency that routinely can meet the statute's time limits for its FOIA requests? On average, we've found, only about 15-20 percent of the class raise their hands in response to that question -- those from the smaller agencies, mostly -- whereupon the rest of the class sits in silent envy of that minority group. I say that because this problem frustrates agency FOIA personnel as well as FOIA requesters.

That is not to say that FOIA requesters don't suffer greater frustrations with this chronic problem. I'm sure that requesters from press groups and other media organizations experience such frustrations and find themselves making use of agency public affairs offices, rather than the FOIA, due to this time factor alone. Other FOIA requesters, though, cannot do so. The FOIA is, after all, a statute designed to be used by the ordinary citizen, as a means of communicating with his or her government, in a very basic way. Yet the average FOIA requester who reads the Act's plain time limit language, and compares it to the timing of an agency's response to his or her FOIA request, might find a glaring discrepancy between the two -- leading to a loss of confidence in government and in the very rule of law. It surely is not good public policy to have an across-the-board statutory requirement that is violated by federal agencies in this way.

There is no easy solution to this problem, however, especially in these times of acute budgetary constraints and intense competition both among and within federal agencies for increasingly scarce administrative resources. A balanced approach to the problem would combine needed infusions of agency FOIA resources with some flexible adjustment of the Act's time limits themselves where necessary to take into account the volume and complexity of a given agency's FOIA workload. One idea that we have raised and discussed at our FOIA training programs is the possible bifurcation of the FOIA's basic administrative process -- whereby large-volume FOIA agencies could first meet an initial deadline for the "record-search" stage of the process and then, after a substantial dialogue with the requester based upon the results of that records search, proceed to the stage of "processing" all requested records for disclosure. At least at the agencies that currently maintain lengthy backlogs of pending FOIA requests, such an administrative procedure could ensure that requesters would see some concrete action on their requests within some reasonably expected period of time. All federal agencies should be willing to work with Congress on such remedial approaches.

A second major group of FOIA issues involves the handling of "electronic records" under the Act. While it is well settled that a record should be no less subject to the FOIA merely because it is stored "electronically" on magnetic tape rather than in conventional paper form, the Act as written does not readily speak to issues that can arise in an "electronic" environment. When the Freedom of Information Act was written in 1966, and even when it was amended in 1974, Congress could barely envision it operating in an "electronic" world. Unfortunately, the Act does not even define the crucial term "record," let alone indicate whether an item such as computer software falls within it.

That is one "electronic record" FOIA issue -- whether software should be treated as a "record" rather than a "tool" in character. A majority of federal agencies do now regard software as a "record," but that issue needs to be resolved uniformly. A far more difficult and consequential issue is the extent to which agencies can be required under the FOIA to undertake computer programming steps in order to comply with FOIA requests -- most significantly, to search through computer databases according to a FOIA requester's preferred specifications. Such steps can range from a few keystrokes to many days' worth of computer programming that agencies don't ordinarily undertake in the day-to-day performance of their basic missions. Another such issue has to do with the format of FOIA disclosure -- whether a FOIA requester should be able to choose the form or format in which an agency makes a disclosure under the Act, including an "electronic" format that does not preexist the request.

These are exceptionally complex FOIA issues that have considerable practical consequences for federal agencies and FOIA requesters alike. In recent years, they have become increasingly controversial among agencies and FOIA requesters and they need to be resolved on a consensus basis if at all possible -- with carefully crafted, workable rules that all federal agencies can follow and apply uniformly. Remedial legislation, where required to bring the Act up to date, can greatly improve its implementation.

Both of these major FOIA subjects were subjects of legislative attention in the last Congress. They were addressed in S. 1940, a bill introduced in the 102d Congress by Senator Patrick Leahy, Chairman of the Senate Judiciary Committee's Subcommittee on Technology and the Law. The Subcommittee held a hearing on S. 1940 last spring, at which the Department of Justice and other interested parties testified, but the bill progressed no further before the end of last year's legislative session.

This year, there should be renewed attention to these FOIA issues, among others, both in Congress and within federal agencies. Now, especially with a change of Administrations, all agencies should be taking a fresh look at the Freedom of Information Act and renewing their commitment to its sound administration, to both the letter of the Act and its underlying spirit as well.

Most importantly, this can be a time when Congress and the agencies of the executive branch join together in a new partnership on FOIA matters -- a constructive partnership based upon their mutual interests in FOIA administration. If the legislative and executive branches work together on difficult FOIA issues--hand in hand, and with the participation of all interested parties involved -- even such exceptionally difficult FOIA issues as the ones I've highlighted here today can be resolved.

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Updated August 13, 2014