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FOIA for Profit

November 6, 2012

By  Eamon Eriksen

The next time you request documents for declassification, it is likely your submission will be processed by a private contractor, not a government employee.

The privatization of the FOIA process has proliferated in recent years.  According to a recent Bloomberg article, “At least 25 agencies are outsourcing parts of the FOIA process, a 40 percent jump since Obama’s inauguration.”  Since 2009, the government has awarded at least 250 FOIA related contracts, and in most cases contractors now outnumber government employees three to one.

Proponents of outsourcing argue that private contractors can speed the FOIA process, reduce backlogs and save taxpayer money.  Speeding up FOIA responses should certainly be a priority, but not at the expense of a quality review process and the proper functioning of government accountability.

Levels of involvement vary from agency to agency, but these contractors are now routinely involved in nearly every stage of the process, including submitting recommendations for what to redact, corresponding with requesters, locating records and drafting responses to FOIA requests.

Official policy prohibits private employees from completing tasks that are “inherently governmental,” but whether processing FOIA requests fits this definition is controversial.  Officials argue that because government employees continue to make the final decisions, contractors are not infringing on governmental functions. “We do it all for them up until the decision point, and then the government takes over,” explains one contractor.  “They’re the decision-makers and we’re the workers” says another.

Disentangling private contractors from “inherently governmental” functions is hardly that simple.  “They are walking right up to the line” says said Scott Amey, general counsel at the Washington-based Project on Government Oversight.

Processing FOIA requests requires subjective decisions at every step, decisions that require expertise, discretion, and interpretation best suited to federal employees. By the time a government official reviews a proposed response, often the contractor has already interpreted the request, decided which records are relevant, applied exceptions and redactions, and drafted a response letter.  Contract workers are often deeply integrated into the agencies themselves, sharing office spaces, attending the same FOIA training sessions, and receiving the same background checks and security clearances as government officials, thus blurring the line between public and private employees.

Contracting FOIA requests has other drawbacks.  For one thing, privatization muddies the chain of accountability.  As John Wonderlich, policy director at the Sunlight Foundation, told Bloomberg, “If I was in charge of an agency and wanted to create an unaccountable FOIA process, the first thing I would do is put an outside contractor in charge of it because fewer of our accountability laws apply to them.  It would just be another layer between me and the public.”

Privatization also creates potential conflicts of interest for contractors.  For example, during the Abu Ghraib torture and abuse scandal, suspicion descended on the contracting firm CACI, which provided translation services at the prison in Iraq.  Contractors working for CACI, the second largest recipients of FOIA contracts, could be involved in reviewing documents that pertain to their own company’s transgressions.

Another possible conflict arises when one contracting firm reviews information relating to a competitor’s business practices.  It is possible that a FOIA contractor could fail to properly exempt the information, or that the information could be passed back to their employer.

Another concern is the fact that contractors’ educational backgrounds range widely, from high school diplomas to law degrees, and the contractor may lack knowledge about the structure, function and responsibilities of the department for whom they are working.

Courtesy of Steve Greenberg

Officials are correct that FOIA offices are often understaffed, and these positions can be difficult to fill due to the lack of advancement opportunities.  But privatization is hardly the only solution to this problem.

The government has taken one step in the right direction.  In April of this year, the government established a new occupational series for FOIA and Privacy Act professionals.  As one White House official says, this new career track will “elevate the importance of the work performed by” FOIA workers, and according to the Department of Justice’s website, “Maintaining a distinct job category for FOIA professionals will create greater professionalization of the FOIA and Privacy Act workforce which will increase agency efficiency and responsiveness.”

In any case, FOIA offices government-wide should have consistent guidelines for reporting how many contractors they hire, how much money they save in the process, what contractors’ responsibilities are, and what kind of oversight officials exercise.

The danger of privatizing the FOIA process is that it could threaten the symbolic purpose the law.  The promise of FOIA is to increase transparency and strengthen government accountability.  The principle of openness is jeopardized when companies, not the government, in effect decide what information the public can access.

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9 Comments leave one →
  1. Julia permalink
    November 8, 2012 12:42 pm

    some scary points, but good to know gov’t is now making moves to address private contractor accountability

  2. Jeremy permalink
    November 8, 2012 1:28 pm

    Reblogged this on Open Geography and commented:
    Outsourcing FOIA seems a bit of a stretch, but apparently it is going on.

  3. November 10, 2012 8:49 am

    Reblogged this on Rashid's Blog.

  4. Emily W. permalink
    November 15, 2012 2:07 pm

    wow, thanks for writing this, very important issues you raise! Especially this part: “the contractor may lack knowledge about the structure, function and responsibilities of the department for whom they are working.” – I have been on the phone with a contracted FOIA officer who did not know the basic structure of the agency they were working for. I had to actually explain to structure to the contracted FOIA person so they could begin to understand my request. It is really disconcerting to see that the contractors have such an intimate role in the FOIA process. And, the conflict of interest issues you raise are really interesting and concerning. Thank you for this wonderful blog!

  5. Jim Hogan permalink
    November 16, 2012 5:22 pm

    Eamon,

    Your article is interesting; however, an unintended consequence may be that you may be hurting the researchers at the National Security Archive in your effort to paint the use of FOIA contractors in such a negative light. The FOIA Office for the Office of the Secretary of Defense/Joint Staff (OSD/JS) in response to Executive Order 13392, outsourced for a significant of FOIA analysts in order to reduce the OSD/JS FOIA backlog. This effort paid off, as can be seen in the Annual Report backlog numbers. I’m sure if you ask any of the researchers at the National Security Archive, they will tell you that they saw a definite improvement in our responsiveness to their FOIA requests. At no time was the final decisions on release ever left with a contractor, nor did they ever have any inputs on what was released or withheld. Yes, at times they were used as a sanity check, but isn’t that what we all want – people working with us that use their analytical skills to provide input, and not be automatons? The main advantage to us outsourcing was that once we had the money, it was only a couple months before we had highly-qualified people in our office attacking the backlog. I would bet that it’s next to impossible for any government office to increase it’s personnel by about 12 people in that short amount of time. Additionally, your comments about educational backgrounds is without merit, because I cannot, without a lot of time-consuming justification, code the civilian positions in our office as requiring a college degree; however, I can write a statement of work that requires a contractor to not only provide me with personnel that have college degrees, I can dictate what kind of degrees. Additionally, your attempt to make the point that “privatization muddies the chain of accountability” has absolutely no support to it. All you did was quote a comment from John Wonderlich to Bloomberg (and, what was the context of the quote) in which Mr. Wonderlich on how HE would act if he was a government employee in some hypothetical scenario. No one is creating putting a contractor “in charge” of an “unaccountable FOIA process.”

    As you may know, in a couple weeks ASAP is holding its annual training and symposium conference, and I have been invited to be on the panel that will discuss the use of contractors. Please understand that I am not in favor of replacing government employees with contractors. I do believe that with the proper accountability and safeguards in place, contractors can be very beneficial in the agencies’ efforts to reduce FOIA backlogs. I will present the benefits and drawbacks I see concerning this issue, and I hope that you will be there so we can discuss this further.

    By the way, in the future if you want to write any more articles on FOIA processing, please give me a call – I’d be glad to share my insights with you.

    Jim Hogan
    Defense Freedom of Information Policy Office

    • Eamon Eriksen permalink
      November 29, 2012 12:39 pm

      Thanks for the insight Jim. Glad to hear that many of the concerns I mentioned are on your radar and still under discussion. I agree that by focusing on accountability and safeguards, something you seem to be doing already, contractors can speed up the response time of FOIA requests. Hope to see you at the ASAP conference.

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