Though the data has yet to be released, Melanie Pustay, director of the Justice Department’s Office of Information Policy (OIP), expects 2018 was another record-breaking year for Freedom of Information Act requests. That means additional burdens on FOIA staff governmentwide, greater difficulty in reducing existing backlogs, and an interest in new ways of handling the increasing demand.
“I’m certainly expecting there to be even more FOIA requests for fiscal year  than the year before,” Pustay said on Agency in Focus – Justice Department. “Certainly our trend line has been ever increasing numbers of requests; the public just seems like they can’t get enough of government information. And obviously it’s a great thing. On the one hand, we love to see people engage, but the challenge for agencies is keeping up with the demand.”
She said more personnel are always helpful, but the real innovation she sees comes from the IT side. Artificial intelligence is one new method to increase efficiency in processing FOIA requests in which Pustay sees particular promise. For example, discovery tools can be used to spot duplicate emails or run search terms faster and more effectively than humans could.
“I really think that the future of FOIA is now taking it to the next level and using artificial intelligence, and using software that can do things like group records together, either by concept or relationship, those kinds of software,” Pustay told Federal News Network’s Jared Serbu. “And those kinds of tools, I think, show real promise in the FOIA context by pre-processing records or grouping similar records together, which could then help speed up the actual review of the records for disclosability.”
She said OIP is at the very beginning of experimenting with these tools, and is still learning what they’re capable of. For example, she said they could potentially also be used to sort documents, flag or group records identified as deliberative by certain rules, or even help determine specific redactions or disclosures.
“It’s hard to think that we’ll ever get to a point where a machine, the software could literally process the document for release,” she said. “But if they can go part of the way there that will certainly make the process of the human review so much faster.”
Going beyond ‘bare legal requirements’
Aside from experimenting with these new tech solutions, OIP also offers guidance and training to agency FOIA staff. Pustay said the goal is to ensure they’re aware of precisely what the law requires, but also to encourage them to go above and beyond in the pursuit of transparency.
“We really want to make sure that people focus on the spirit of the of the law, go beyond just the bare legal requirements of the statue, but also really look for ways to implement the statute in a really fulsome, robust way, applying the presumption of openness, looking for ways to increase the public’s understanding of what the government does, really thinking about why we have a Freedom of Information Act,” Pustay said.
That can take the form of sharing success stories from agencies that have managed to reduce their backlogs, and holding best practice seminars. It can also involve helping them institute the changes required in 2016’s FOIA Improvement Act, which – among other changes – codified the “Rule of Three.”
The Rule of Three was guidance that OIP offered even before the 2016 Act, saying that an agency that receives three separate requests for the same document or set of documents should simply publish those documents online. That would help to anticipate further requests from the public, increase transparency, and reduce the workload on FOIA staff.
Pustay said three requests is usually a good indicator of public interest, and the assumption is that if an agency receives three requests, it will likely receive even more. The rule goes even further than that though: If agency FOIA staff expects to receive at least three requests, it should publish those documents proactively. Pustay said FOIA professionals who deal with the public and their requests on a daily basis usually can recognize when a new directive will drive this kind of interest.
That said, OIP still released guidance and training on these proactive disclosures.