Three Ways to Fix the Freedom of Information Act

For more than half a century, the Freedom of Information Act has provided the public with a window into the inner workings of its own government. Passed in 1966, FOIA translates into law the fundamental principle that Americans have a right to know how federal agencies operate in their name.

Over the years, however, agency resistance and excessive delays in the administration of the statute have increasingly undermined FOIA’s ultimate purpose of encouraging greater transparency. Information requests continue to pile up, an ever-growing backlog that has been unmatched by additional resources.

One factor is the increase in the total number of requests. The year 2017 set the record for the most requests ever submitted — more than 800,000 — and the Justice Department office that collects data on FOIA requests said it doesn’t expect that record to last through this year. This huge volume is not only evidence of an engaged citizenry, with many concerned about the state of our democracy; it is also a result of both a growing population and a growing federal government.

The compounding backlog of requests has led some officials and lawmakers to blame requesters rather than the lack of resources provided to agencies as well as agency practices that hinder the prompt release of government records. Just last year, the FBI cited its own backlog — in other words, its failure to meet its FOIA obligations — as a reason for letting it off the hook in a FOIA lawsuit.

Government agencies routinely abuse the requirement under FOIA that requests be “reasonably described,” demanding specificity beyond what the law requires and marshaling the provision to reject requests for records that are easily identifiable. Agencies also engage in delaying tactics, such as consulting with other agencies or referring records to another agency after months or even years of processing. FOIA requires that agencies respond to requests within 20 working days, but this is frequently avoided by taking advantage of those loopholes that are difficult for requesters to combat either in court or through direct advocacy.

On top of these concerning tactics is the issue of limited and inadequate resources being provided by agencies to actually meet their legal obligations. Meager staffing and outdated information systems reflect the lack of prioritization agencies have given to FOIA processing.

In 2016, on the 50th anniversary of the law, Congress passed the FOIA Improvement Act, an attempt to fix several issues. The amendments make a number of improvements, including prohibiting an agency from withholding documents unless it can specify a foreseeable harm arising from their disclosure. But the backlog continues to grow, and it’s clear that these changes have not been enough. On Thursday, American Oversight sent a letter to a bipartisan group of members of Congress, highlighting three additional changes could be made to strengthen the Freedom of Information Act.

The first would be to amend Section 552(a)(3) to make it clear that a record is “reasonably described” when an agency employee can understand what record is being sought and can locate it. The act should specify that for a request to be “reasonably described” a requester need not limit their request to particular subject matters, topics, key terms, or custodians.

Second, amending parts of Section 552(a)(6) to limit the time that an agency is allowed to withhold documents for inter-agency consultation would significantly curtail excessive delays. So would imposing meaningful penalties on agencies that fail to process requests within the required time. A consultation period limited to 20 business days could be extended for an additional 90 calendar days only if the agency head determines that additional time is needed to ensure that governmental interests are fully protected.

Finally, developing government information systems with search and processing functions would help efforts in processing FOIA requests, as would mandating that agencies provide an appropriate portion of their budget to FOIA processing. For instance, an agency could be required to have a specific number of employees dedicated to FOIA processing or face real budgetary consequences for not meeting its obligations.

As the demand for information continues to grow, it’s up to Congress to force agencies to improve their responsiveness. Responding to requests need not be a Sisyphean task for a small number of dedicated employees, and it should not be an opportunity to obscure information with overlong delays or unnecessary redactions. The changes to FOIA mentioned above would improve the ability of requesters to receive the records they need, ultimately resulting in greater transparency and a more informed public.

See the letter sent to Congress:

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