As FOIA requests mount, Congress doubts agencies’ progress

How are agencies coping with an unprecedented surge in Freedom of Information Act requests?

Reporters and others who seek information under the open-records law say they’ve waited as long as 10 years for some records.

But agencies say they’re doing quite well considering their resources.

The House Oversight and Government Reform Committee listened to both sides of the open-records process during two days of hearings.  While some members sympathized with agencies’ complaints about a lack of resources, they questioned whether agency FOIA officers painted too rosy a picture.

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“We can’t just put a smiley face on everything and say it’s good,” said committee Chairman Jason Chaffetz (R-Utah), who vowed to push legislation through Congress.

FOIA requests topped 700,000 in fiscal 2014, leading to a similar rise in the backlog of unfilled requests, according to the Justice Department’s Office of Information Policy.

Yet the office’s director, Melanie Pustay, told the committee that agencies dealt with most requests within 21 days and only a handful of the agencies were responsible for the backlog.

“The system works well for many requestors,” she said. “Since 2009, agencies have responded to nearly 4 million requests. Every time a student gets documents for their paper or a reporter gets them for their article, that’s a success story.”

The government processes 91 percent of requests. Just 2 percent end up in lawsuits, she said.

“You live in la-la-land,” Chaffetz told her. “We’re now getting to the heart of why there’s a problem: You all think you’re doing a great job.”

Chief FOIA officers from the departments of State, Homeland Security and the IRS cited antiquated technology and staffing shortages as reasons why they had failed to keep up with the increase in requests.

Republicans jumped on the IRS for delays in responding to Congress’ requests for emails pertaining to alleged targeting of conservative groups in the agency’s tax-exempt office. The IRS lacks technology that lets it easily search and retrieve emails, said Mary Howard, the agency’s director of privacy, government liaison and disclosure.

The only way it can ferret out emails is “by account, by account, by account,” she said. “There’s no library. There’s no massive storage.”

The agency’s budget situation has made it hard to retain good FOIA officers, she added.  She testified only after being subpoenaed.

DHS has sped up its processing of FOIA requests, but not enough to keep up with the number of requests it receives, said Chief FOIA and Privacy Officer Karen Neuman. The agency receives 40 percent of all FOIA requests, many for immigration records.

Neuman said she was awaiting results of a comprehensive review of the department’s FOIA processes. In the meantime, DHS is deploying better technology that makes it easier to track requests at 11 of 15 components. It is also seeking short-term contract employees to deal with the surge.

“We are starting to see a slow, but steady decline in the backlog,” she said. It has dropped 11 percent since the beginning of October. It now stands at 92,066, she said.

Lawmakers sought to draw a contrast between those agencies and the Treasury Department. Last year, it closed nearly as many requests as it received. Its backlog is under 1,000. It has made concerted efforts to close most of its older cases.

Treasury increased funding on FOIA compliance by 28 percent in fiscal 2014. It hired more staff and improved its website for FOIA requests, Assistant Secretary for Management Brodi Fontenot said.

That’s proof that some agencies take FOIA requests more seriously than others, Chaffetz said.

“There will be another FOIA reform bill”

The committee will revisit the legislation it approved earlier this year, Chaffetz said.

“We’ll probably lessen the number of exemptions,” that agencies can cite as reasons for denying requests, he said. “Let’s do what President Obama has said. Let’s err on the side of releasing them. I don’t think the people in your departments feel like they can do it.”

The bill would establish a governmentwide council of chief FOIA officers, among other things. Yet, when asked whether they would support the council, the FOIA officers remained noncommittal. They said they were not prepared to take a stand on the legislation.

Rep. Elijah Cummings (D-Md), the committee’s top Democrat, said the agency representatives should tell Congress what they needed to improve the situation. He asked them to respond within 30 days. He said he wanted to help make things better.

“It’s hard to do that when you think you’re almost perfect, though,” he said. “The testimony you give today compared with yesterday — it seems like a world of difference.”

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