Open government advocates push for finalization of ‘release to one, release to all’ policy

Twenty-two open government organizations are looking to help expand public access to information, and at the same time lessen the paperwork burden on agencies.

Last year, federal agencies produced 700,000 Freedom of Information Act requests — not pages, individual products.

Twenty-two open government organizations are looking to help expand public access to information, and at the same time lessen the paperwork burden on agencies, through a petition for rulemaking to finalize the “release to one is a release to all” policy standard.

The petition calls on the Office of Management and Budget and the Justice Department’s Office of Information Policy to finalize a policy tied to the FOIA Improvement Act of 2016. The policy requires agencies to post online the information they release under a FOIA production.

“We’re talking about an enormous amount of information that the government is already going through the process of making public,” said James Valvo, counsel and senior policy adviser with Cause of Action Institute. “They’re reviewing this information for sensitive information, putting redactions on it, and they’re releasing it to the requester, so there’s huge public benefit that can be reaped by putting the information online.”

In an interview with Federal News Radio, Valvo explained that in 2015, the Justice Department launched a pilot with seven agencies to study the idea of a release to one, release to all process.

“They finished that pilot program and released their report about the time that President [Barack] Obama signed the 2016 FOIA amendments into law, and when he did that, he as part of the rollout of the new law decided to ask OIP and [the Office of Management and Budget] to finalize this policy that they had been working on … and make it the policy for the rest of the government,” Valvo said. “And so he asked them to complete that process by Jan. 1, 2017. OIP was well on its way to doing that, it put out a request for public comment, multiple members of the transparency community and non-profit organizations that work on transparency issued filed comments in response to OIP’s request. We felt like we were well on our way to having this become policy. Unfortunately, things haven’t progressed that way.”

Valvo said in 10 months, there’s been no response from the administration.

Sunlight Foundation Deputy Director Alex Howard said in a statement that the policy “has broad support within the transparency community, and we deserve an explanation as to why progress has ground to a halt after months of analysis, planning and responsive feedback to a request for public comment.”

A DoJ spokeswoman said in an email to Federal News Radio that the policy is still under consideration.

“The Department of Justice is committed to transparency and continues to encourage proactive disclosure,” she said.

Valvo said the primary goal is finalizing the policy, but the reason for the petition is that OMB and DoJ have a statutory obligation to respond to the petition.

“That’s why we took the more forceful step instead of just sending the coalition letter or a public letter,” Valvo said. “We want to do something that has some legal force behind it. We certainly hope that it doesn’t come to that, we don’t want to have to sue them for answers on something as simple and it should really be a good relationship between these offices and the transparency community — and I want to say largely that it is and it has been, and we’re sort of disappointed we had to take the step here — but the petition for rulemaking is something that the agencies do have to respond to, and we hope that they do that promptly.”

FOIA constraints

Valvo said he hoped agencies would continue to reflect what seemed to CoA as good public policy.

“It’s a good leveraging of existing resources,” Valvo said. “Agencies are already putting a lot of time, effort and money into the release of these documents. What we need to do now is figure out the way to get the most benefit for the public out of that investment.”

One way to do that is by putting the information on agencies’ websites so that it’s publicly available, which in turn allows people outside the government to use it in ways that perhaps the original requester didn’t know about or intend to do.

Valvo said there have been some questions about when the release to all would occur, since there is support for the original requester getting first access and time to do something with that information.

“You wouldn’t want that person to be in a position where they’re getting scooped, and reduce the incentive to use the FOIA,” Valvo said. “We want to be mindful of that.”

Former Office of Government Ethics Director Walter Shaub told Federal News Radio he would like to see something released to everyone within a day or two.

That way, “the industrious, entrepreneurial FOIA requester gets a little bit of a head start, because that will help encourage the public to keep looking and reward those who do,” Shaub said. “But I think after a 24-hour or 48-hour waiting period, these should be posted and all FOIA requests should be released to all people.”

Valvo said CoA and other transparency advocates do also want to be respectful of agencies who have limited FOIA resources or more challenges filling information requests.

Things like 508 compliance can be an obstacle when an agency needs to convert something; however, Valvo said “that’s not insurmountable.”

“We understand that might take them a little bit more time,” Valvo said. “There’s also resource constraints. Some agencies are very small, they deal with a couple hundred FOIA requests a year. In a situation like that, I think the FOIA office is probably in a good position to just post information on their website. It’s not going to take them very long. It’s not a big lift for a small agency, but agencies like State, DHS, do enormous amounts of FOIA requests. They probably need to have individuals in their IT services department help them, but that’s really an agency-by-agency decision and concern.”

Valvo said he does understand that’s something agencies will need to deal with, but that’s also something OIP had been figuring out through its pilot program and in its draft guidance it put out for public comment, and shouldn’t be an obstacle to finalizing the policy.

“It’s certainly not an obstacle to not providing people answers to questions,” Valvo said.

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