FOIA managers stymied by ‘thick walls’ in trying to get records

The Freedom of Information Act has been the law of the land for 50 years, but former government officials say the landmark transparency bill doesn’t empower agency offices to reduce their huge information request backlogs.

In a kickoff event to celebrate Sunshine Week, a panel of government experts said FOIA officers often feel just as frustrated as the journalists and good-government groups who file FOIA requests.

Miriam Nisbet, the former director of the Office of Government Information Services, said she was surprised by how convoluted the FOIA process appeared once she left the federal government.

“Even though I was incredibly familiar with the way government operates … those walls around the departments and agencies are really tall and they’re really thick, and even if you have been on the inside, as soon as you are outside, there’s a big, big, big obstacle to communicating with people on the inside,” Nisbet said during the March 11 panel at the Newseum in Washington, D.C.. “When you’re on the inside you just don’t realize that people on the outside really don’t understand how you’re operating  and how the decisions are made.”

The House Oversight and Government Reform Committee in January released a report entitled “FOIA is Broken,” which came down hard on a governmentwide failure to adhere to the 20-day response window for FOIA requests. Those who file requests can often expect to receive documents in a matter of years, rather than days or months.

In his keynote address, Rep. Jason Chaffetz (R-Utah), the committee’s chairman, called on Congress to push through a FOIA reform bill sponsored by Rep. Darrell Issa (R-Calif.), the committee’s former chairman. The bill passed the House in January and then it passed the Senate March 15.

Sen. John Cornyn’s (R-Texas) own FOIA bill, which would require federal agencies to make their disclosed documents available the public in an electronic format, passed the Senate on Tuesday.

“Government’s going to change, technology’s going to change, the Federal Records Act is going to change. As we look at the Freedom of Information Act, we’ve got to make sure that that tool … remains strong and vibrant,” Chaffetz said.

Sheryl Walter, the former director of the Office of Information Programs and Services at the State Department, said agencies with the most classified records also face the largest backlogs. When she started at State, Walter said she faced a backlog of 20,000 requests.

“I think it’s hard for requesters to realize that there’s just not a file cabinet you can open up — literally or virtually. At the State Department, it’s a global enterprise with embassies and consulates around the world. So even trying to coordinate a search is a really tricky thing when you realize that you’ve got a time difference of 16 hours, and just trying to get somebody on the phone is really difficult,” Walters said.

Meredith Fuchs, the former general counsel at the Consumer Financial Protection Bureau, said the new agency, formed in 2011, doesn’t have the same backlog issues that other agencies have.

“We had none of the legacy of the 20,000 old FOIA requests, we didn’t have the old technology that most government agencies have, and we were starting fresh … we were in such a good place compared to other agencies because of not having this legacy, and I felt sympathetic to other agencies that just had no ability to deal with the information that they have within the agency,” Fuchs said.

Nisbet said FOIA officers need better negotiating skills in order to get their hands on the records from the program that held those records, which she said is often the biggest delay in the FOIA process.

“So you can have incredibly well-meaning FOIA officers who are trying to manage backlogs, who are trying to be responding in a timely fashion, and one of their biggest challenges is being able to actually get the program people to tell them what records are there or not there,” Nisbet said.

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