FOIA backlog casts a dark cloud on Sunshine Week

By Jory Heckman
Federal News Radio

In a weeklong conversation about the Freedom on Information Act, the federal government hasn’t brought much good news to the table.

This year’s backlog of unanswered FOIA requests grew to more than 200,000, an increase of 55 percent, according to an analysis by the Associated Press. The government’s FOIA workforce is also the smallest it’s been in the past five years — 375 full- time FOIA workers, or about 9 percent of the field’s workforce, have been cut from federal agencies.

Daniel J. Metcalfe, former director of the Justice Department’s Office of Information and Privacy, said agencies do not have the workforce they need to comply with President Barack Obama’s 2009 Open Government Directive, which mandates agencies to clear its FOIA backlog by at least 10 percent every year.

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“During the latter half of my tenure between 1981 and 2007, the governmentwide FOIA workforce, so to speak, stood at slightly above 5,000. By that I mean to say we collected statistics on the people who worked on the FOIA in one way or another, full-time, and then we also looked at the people who worked on the FOIA part-time, occasionally, or to some fractional extent. We added up all of those fractions, and that amounted to more than 5,000 person-years on FOIA matters per year. My understanding is that the latest such statistic is actually below 4,000. That’s quite a drop,” Metcalfe said. “Now someone could say, ‘Well, you don’t need as many people if you’ve been able to make good use of technology over the passage of time,’ to which I say ‘Yup, that makes sense in and of itself. But that doesn’t add up if you still have a backlog.’ Because you should be applying the efficiency of technology to reduce your backlog, not to reduce your staff.”

Metcalfe, who now teaches secrecy law at American University Law School, called the State Department — which scored an ‘F’ in FOIA compliance on the Center for Effective Government’s scorecard — a model for what agencies shouldn’t do.

“The Department of State is probably the poster child for poor FOIA performance nowadays,” Metcalfe said. In a piece for Politico Magazine, he voiced concern over former Secretary of State Hillary Clinton’s exclusive use of a personal email account — operated by a private email server — during her tenure.

On her press conference explaining her total reliance on a personal email account, Metcalfe reacted immediately to the phrasing of her opening lines, in which she said she “opted for convenience to use [a] personal email account.”

“Under the Federal Records Act, she did not have such a black and white choice, to ‘opt’ for a personal rather than an official email account. That’s just not how that works,” Metcalfe said. “It was not at all the ‘choice’ that she misleadingly portrayed it to be.”

Clinton claimed that the government emails sent from her personal email account — which constituted the “vast majority” of them, she said — would be sufficiently “captured” by the State Department in the inboxes of officials she contacted.

“As a practical matter for purposes of dealing with Freedom of Information Act requests, the counterpart enterprise that would be involved would be for the FOIA officer to go the Secretary’s office and think ‘Well, we don’t have her outbox here because she’s not part of the official system. She probably communicated with these 100, at least, State Department officials, so we’ll go to them and look at what’s in their inboxes.’ Well that’s impracticable and not at all correctly comprehensive. Any FOIA officer would tell you that such a thing is just not viable at all as a practical matter,” Metcalfe said. “I have no reason to think whatsoever — and it would be contrary to law, experience and good common sense — that she was told that it was allowed for her to have only a personal email account, because that is not what the law and implementing policy regulations say. That’s not what the National Archives would say. She might possibly have been ‘allowed’ to do what she did in the sense that no one tackled her in the hallway on her way to doing it, and physically restrained her, but something went wrong there, big-time.”

To improve the poor performance of agencies like the State Department, Metcalfe called on the Justice Department to lead by example.

“For the Department of Justice to be a leader, to have standing to look agencies in the eye and implement the President’s 10 percent per year backlog reduction mandate, it has to walk the walk and not just talk the talk… and if you go back and see what the numbers were as of December 2009 and what they are today, you’ll realize that the Department of Justice overall and the Office of Information and Privacy in particular, very sadly, actually have no standing to look other agencies in the eye and say do this. Because the other agencies can say ‘Wait a minute, you haven’t done it yourself. As a matter of fact, you haven’t even come close. Why are we supposed to do it when you haven’t, when you failed?’ That’s the difficulty.”

Melanie Pustay, the current director of OIP, recently told Federal News Radio that the volume and complexity of DoJ’s FOIA requests keep increasing, which makes the agency’s backlog more difficult ot surmount.

Metcalfe said he doesn’t recall any trend during his tenure at OIP that would suggest the complexity of FOIA request has made them harder to fulfill.

“That is easy to say and difficult to back up factually. It is something that is thrown around rather freely, shall we say, without any necessary, substantive backing behind it. I can well understand why someone in OIP would like to say such a thing today, given the difficulty with which OIP has been struggling for quite some time now, but that doesn’t necessary make it so,” Metcalfe said. “There is very little empirical information that speaks to complexity, per se, and certainly during my tenure as director of that office for 25 years, we never once had a year in which governmentwide the complexity of FOIA requests increased that significantly from one year to the next.”

Metcalfe said during his tenure at OIP, several agencies did contend with some increasingly complex FOIA requests in particular years. “But that’s a far cry from resorting to claiming that increased complexity is the reason or even a substantial reason for backlog reduction failure in the face of President Obama’s 2009 10 percent per year reduction mandate,” he said. “And as for OIP’s own backlog statistics over the past several years, they have abysmal. So much for the Justice Department serving as a model for the rest of the executive branch.”

“There are agencies scattered throughout the government that have made some remarkable progress in backlog reduction…. but the White House mandate is for it to be governmentwide, where agencies have backlogs. And if you were to look at the major FOIA agencies — Department of State, the CIA, NSA and the FBI as a component of the Department of Justice — you would see that there just has not been anything approaching the results that President Obama called for. I don’t know that the Department of Justice itself, through the Office of Information Privacy, has made this much of a priority at all, especially for instance with encouraging more timely FOIA compliance at the State Department.”

OIP released on Monday a new agency-wide guidance on proactive disclosure of information that could likely be requested under FOIA requests. Metcalfe, not speaking directly on the ins and outs of the new guidance, said better proactive disclosure is just one tool that agencies have to reduce FOIA request backlogs.

“It is a bit of a panacea in the sense that although in theory it does make sense that when an agency discloses something on its own initiative affirmatively, then that’s one less thing that need not be the subject of a FOIA request that could contribute to an agency’s backlog, but the overall impact is not as great as you might think,” he said. ”

“During my tenure and in my experience, it was not uncommon for a member of Congress looking at governmentwide FOIA administration from a distance to say ‘Let’s now reduce the backlogs by encouraging affirmative disclosure, process things in advance and the like.’ While it is true that it does have some positive result, it goes only so far. The increasing numbers of FOIA requests and the increases rather than decreases in backlogs certainly speak to that.”

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