Justice Dept. fights uphill battle to improve FOIA disclosures

The Justice Department’s Office of Information Policy is constantly fighting an uphill battle to improve federal agencies’ responses to FOIA requests. Requests from the public rose by 19 percent in 2015, clearing 700,000 for the first time in history, with a total of 769,903 requests according to DoJ’s annual FOIA report published in March 2016.

While 2016’s numbers are expected in the near future, Melanie Pustay, director of the OIP, said that it was also a record-breaking year.

To help agencies deal with increased FOIA requests, President Barack Obama signed legislation to expand access to government information, while government FOIA staff increased by 7 percent, and most agency backlogs fell below 100 requests in 2015.

The FOIA Improvements Act codified many of the concepts the president initially introduced in 2009, including the presumption of openness for all government records. The House passed the Senate’s version of the bill June 13.


“We think it’s a really good standard for making something available online and actually, what’s great about it is this was the Department of Justice’s longstanding guidance to agencies,” Pustay said on In Depth with the Justice Department.

The bill also set a time limit of 25 years for how long agencies can keep internal deliberations confidential, and required proactive disclosure of records or information.

“What we called colloquially ‘the rule of three,’ that’s now been codified,” she told Federal Drive with Tom Temin. “And what that means is that the FOIA statute now requires agencies to make available proactively on their website any record that has been requested under the FOIA three or more times.”

But Pustay said there seems to be a cycle where increased openness on the part of agencies actually leads to more FOIA requests from the public, as the release of records leads to interest in related records.

“I have long been encouraging agencies to post records that are of interest to the public, and in the hope that we would see the number of requests received by agencies decrease,” she said. “But year after year, even though agencies keep posting more and more records, they’re still getting more and more requests for records. So I actually have stopped saying to agencies ‘hey, put things on your webpage and you’ll reap the benefits of fewer FOIA requests’ because that statistically hasn’t happened.”

The legislation also put limitations on agencies’ ability to assess fees, including narrowing exceptions and establishing a process the agency has to follow to get exceptions.

OIP has been helping agencies navigate those particular changes.

“We created guidance to help agencies apply these new provisions, and we created a new document we’re calling a decision tree, and that actually guides agencies through a step-by-step process of determining whether they can assess fees or whether one of the exceptions to the rule was met,” Pustay said.

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