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As the federal government saw a record-breaking number of Freedom of Information Act requests last year, many agencies still struggle with a growing case backlog.
At a Senate Judiciary Committee hearing Tuesday, several lawmakers expressed frustration with some of the bottlenecks in the FOIA process. The hearing occurred during Sunshine Week, an annual initiative by journalism associations to raise awareness of FOIA and its potential obstacles.
Committee Chairman Chuck Grassley (R-Iowa) complained that, in some rare cases, agencies continue to work on FOIA requests from 10 and 15 years ago.
“No one can say with a straight face that FOIA always works as intended,” Grassley said.
While the FOIA requires agencies to respond to requests within 20 business days, that rarely means they provide the records under that timeframe
“Anyone who’s made a FOIA request, only to receive a full page of redactions — and that’s something that happens regularly — and be charged an absurd processing fee , or to simply get no response at all, knows what we have to work with when you want to use FOIA,” Grassley added.
Responses lacking, less information available online
David Powner, the director of information technology management issues at the Government Accountability Office, told the committee that many agency chief FOIA officers find themselves in the same boat as agency chief information officers, meaning they do not receive enough authority from their agencies.
“About half of the CIOs at departments and agencies do not report appropriately. According to law, they should report to the deputy secretary or higher,” he said. “That doesn’t happen, and then you wonder why we have IT problems.”
The Associated Press reported Monday that out of the more than 800,000 FOIA requests filed in 2017, 78 percent of the responses contained censored documents or were answered with nothing. In cases where the government provided no records, FOIA officials said they could not find information related to the request more than half the time.
One reason for the surge in FOIA requests, according to Sen. Sheldon Whitehouse (D-R.I.), has been the removal of some documents, including Cabinet secretaries’ schedules, from agency websites.
“When you jam up those means of public disclosure, you necessarily drive more people into the FOIA process, and that jams up the FOIA process,” Whitehouse said.
In order to reduce the backlog of FOIA requests, Grassley asked Melanie Ann Pustay, the director of the Justice Department’s Office of Information Policy, whether it would eventually adopt a “release to one, release to all” policy.
“While we share your view that it has this inherent appeal to post after one request — the information’s been processed for release, let’s make it available for everyone — there are many competing concerns connected with implementing that policy, and that’s what’s taken us additional time to review,” Pustay said.
The FOIA Improvement Act, which Congress passed in 2016, now requires agencies to post documents online after they’ve been requested three or more times.
While Pustay said the legislation has helped encourage more proactive disclosure of documents, she said one of the major bottlenecks in posting documents online is the time it takes to code them to make them compliant with Section 508 of the Rehabilitation Act.
“For many agencies, the same people who would be responsible for coding the records so that they can be posted, they’re the same people that work on FOIA requests. So those agencies have identified concerns that if they have to divert their resources to coding records, then that ultimately hurts their ability to process other requests,” Pustay said.
“That doesn’t meet the common-sense test,” Grassley replied.
Alina Semo, director of the National Archives and Records Administration’s Office of Government Information Services, told senators that the FOIA Advisory Committee, which she chairs, will review ways to encourage proactive disclosure at its next meeting in April.
Powner said the government spends more than $500 million on FOIA activities every year. Of that sum, he said 93 percent of costs go toward processing requests, while 7 percent goes toward litigation.
As of fiscal 2016, the Department of Homeland Security, which receives more FOIA requests than any other agency, had a backlog of 46,000 cases. However, that is an improvement compared its backlog of more than 100,000 cases in 2014.
In order to improve the FOIA backlog at large agencies like DHS and the departments of State and Justice, Powner said the White House needs to take the lead on this effort.
“It’s very difficult in the federal government for agencies, even when they’re designated the lead, to lead without someone in the Executive Office of the President or [Office of Management and Budget],” he said. “This idea of not complying, you’re going to get that all the time, but if you get someone at OMB who controls the purse strings, then people line up.”