Surge in information requests, hiring freeze puts pressure on overburdened FOIA offices

Freedom of information advocates say the recent uptick in FOIA requests is due to a combination of current events and interest in the presidential transition. B...

The Environment Protection Agency collected about 200 Freedom of Information Act (FOIA) requests during the first week of the Trump administration, and more than 20 percent of them are about the new president, climate change and social media.

Larry Gottesman, director of the national FOIA program at EPA, said his agency receives about 12,000 requests per year. According to FOIAOnline, since the beginning of October, the start of fiscal 2017, the EPA has received roughly 3,200 requests.

Gottesman said the uptick is the result of a new administration, and that the FOIA requests his office is collecting range from well wishes of support to questions about the nomination of Rex Tillerson as the new Secretary of State.

FOIAOnline only exports the first 2,000 search results to Excel, but of those first 2,000 cases, 16 included something about climate change information, while 14 included the name “Trump.” About 17 referred to social media and communications between the White House, EPA and the public.

A search on FOIAOnline found about 70 requests were submitted between Jan. 20 and Jan. 27,

While the archives for 2009 and 2013 were not complete, Federal News Radio found nine requests in between October 2008 and inauguration week January 2009, which would have been a transition year like this one.

In 2013, the start of the second Obama administration, about 26 FOIA requests were submitted in the week after the inauguration.

EPA, along with the Interior Department — including the National Park Service — Department of Agriculture, and the Department of Health and Human Services, made headlines after reports that the Trump administration issued directives  to block external communication on social media, impose gag orders to reporters, and even rerouting congressional briefings to specific offices.

Chris Bentley, spokesman for the USDA’s Agricultural Research Service, said there was an uptick in FOIA requests.

“We’re still doing initial processing so a more detailed accounting isn’t available right now,” Bentley said.

NPS, which grabbed attention when various parks began tweeting in what appeared to be defiance of White House orders, received about 120 FOIA requests between Jan. 20 and 27.

NPS spokesman Thomas Crosson said the agency received an average of 16 requests for the fourth week of January, for the past decade.

Crosson said he couldn’t speculate on the cause of the increased numbers, but in an email to Federal News Radio, said “general categories of information being requested include but are not limited to communication between the White House and the National Park Service on topics relating to the inauguration.”

Just a ‘blip’

How much the upswing is from it being a transition year versus interest in the Trump administration itself is hard to say. But FOIA advocates say what they’re interested in is how information offices handle the workload.

Dave Hagen, chief marketing officer for AINS, a case management software provider, said the company is already hearing a lot of agencies are struggling to keep pace with FOIA demands.

“I think they’re only anticipating that demand to grow over the coming months,” Hagen said. “We’re hearing that not only from customers, we’re hearing that from industry folks.”

AINS provides FOIA case management software to about 400 agencies at the local, state, and federal levels.

“A lot of agencies that use our software, they’re struggling with the backlog in general, especially some of the larger ones,” Hagen said. “Adding on top of that, the growing amount of backlog requests, which ultimately leads to more delays, which potentially could lead to down the road more litigation. and I think that’s where a lot of agencies are really trying to figure out how do they prevent that, how do they get ahead of that now, because it’s ultimately going to be a bigger heartache down the road.

Scott Hodes, an attorney and immediate past president of the American Society of Access Professionals, said he doesn’t think the surge will be a long-term one.

“It’ll just be a blip that they can work through,” Hodes said. “And that’s what a good FOIA manager will say: ‘You know we’re going to have this big influx, and we’ll just deal with it.'”

Hodes, now a private attorney, worked for the Labor Department, Justice Department and FBI. Between 1998 and 2002 Hodes was the acting unit chief of the Freedom of Information/Privacy Act section’s litigation unit, according to his firm’s site.

These “blips” in FOIA activity aren’t new, Hodes said, pointing to the State Department and its handling of emails related to former Secretary of State Hillary Clinton, or the IRS and communications about conservative political action groups.

It’s not always pleasant, and it doesn’t always occur at the best times — which can impact budgeting for the coming year — but spikes in FOIA requests aren’t necessarily a cause for alarm, Hodes said.

What it comes down to, Hodes said, is FOIA office leadership.

“If they’re not seasoned and this is the first time they’ve run into something like this, then they could panic,” Hodes said. “If they panic, there’s not much they can do, because they still have to go and process these things. But if they were overwhelmed then that could cause some problems, just like in any other office or any other industry or business when you have a lot of work to do.”

One of the good things that comes out of a busy filing time is that often the requests are asking for the same type of information. Good managers will follow the “rule of three,” and post information related to three of the same requests, Hodes said.

Or they could recognize that a current event might prompt a particular FOIA request and provide that information before the requests start filing in.

Hodes said he could see problems if political appointees attempted to get involved with FOIA communication. Another issue is that most FOIA offices aren’t at full capacity, which means fewer people to handle more requests.

The recent hiring freeze isn’t going to help with filling those offices either, said Alex Howard, deputy director at the Sunlight Foundation.

“If you combine that with a lack of proactive disclosure, memorandums and press briefings, it is natural to expect that records requests are going to rise and you’re going to see a lack of responsiveness because the capacity isn’t there,” Howard said.

‘Make access happen’

During the Jan. 26  National Archives and Records Administration FOIA Advisory Committee, Michael Marquis, director of the Freedom of Information and Privacy Acts Division at the Health and Human Services Department, said his office was working on maintaining a section on their website for transition documents.

“Right now there’s a tremendous interest in transition records,” Marquis said. “We wanted to make that information available on our website.”

FOIA committee Chairwoman Alina Semo told Federal News Radio that her personal feeling was agencies’ FOIA employees need to “continue to be good government servants.”

“Make access happen,” she said.

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