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What the US National Action Plan is Missing

November 8, 2013
The White House's outline for its second National Action Plan.

The White House’s outline for its second National Action Plan.

The Open Government Partnership (OGP), an international coalition working to make governments more transparent and accountable, just wrapped up its latest summit in London. For the summit, each government was asked to “announce an ambitious new open government commitment to be integrated in their OGP action plan.” The Obama administration complied, announcing the outline for the United States’ second National Action Plan.

The administration’s second National Plan includes a lot of potentially powerful improvements to the FOIA, like developing a set of common FOIA regulations, improving FOIA training across the government, establishing a FOIA modernization committee, and developing a consolidated online FOIA service. These potential improvements will be felt if the administration puts in the hard to work to make substantive improvements to how it administers the FOIA. However, the Action Plan falls short in one key area: it doesn’t require agencies, whether independently or as part of a collective, to post documents online as they are released through the FOIA.

Not requiring agencies to post documents online as they are released through the FOIA is a key misstep that is at odds with basic OGP principles of opening up government data for greater accountability, ultimately creates more work for requesters and agency FOIA officers, and leaves the United States in the second tier of Open Governments. Of course, several agencies, including the Department of Defense Washington Headquarters Services, the Interagency Security Classification Appeals Panel and Department of State, as well as the agencies participating in FOIAonline, already post documents online as they’re released.  This is the direction the entire federal government should be heading.

While the idea of posting all released documents online is broadly embraced by the requester community, some have postulated  that posting documents online –especially in real time as they are released to FOIA requesters (especially journalists)– may be detrimental to the investigative process or the ability of a journalist to to get an exclusive.  However, the fundamental principle guiding open government is that a documents release to one requester constitutes a release to the public as a whole. Additionally, FOIA request logs are already posted online, providing the public an idea of what’s been requested, released, and who filed the requst; a natural follow-through is to actually post the documents themselves. Perhaps the best method that addresses both journalistic and FOIA advocates concerns’ is to require the documents be posted online, but not immediately.  Currently, the Department of State posts FOIA’d documents quarterly.

See.  Was that so hard?

See. Was that so hard?

Of course, many government agencies do not embrace the idea of posting their FOIA responses online.  If you bring up the subject of posting FOIA documents online as they are released to many chief FOIA officers, the first sentence of their response to you will include the term “508 compliant” — a statute from 1998 requiring federal agencies “to make their electronic and information technology (EIT) accessible to people with disabilities.”  The fact of the matter is this excuse is likely a Red Herring.  All documents posted on FOIAonline are 508 compliant, as are the documents posted by the DOD and Department of State.  In fact, every document created electronically by the US government after 1998 should already be 508 compliant.  Even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat, according to this DHS guide (essentially OCRing the text, and including information about where non-textual fields appear).  At any rate, even if agencies are insistent it is too difficult to OCR older documents that were scanned from paper, they cannot use that excuse with digital records.

Another commonly articulated concern about posting FOIA releases is concern over posting privacy information from “first person” FOIA requests.  This is a valid concern, and this subset of FOIA requests should not be posted online.  (The DOJ identified “first party” requester rights, in 1989.  Essentially agencies cannot use the b(6) privacy exemption to redact information if a person requests it for him or herself.  An example of a “first person” FOIA would be my request for my own immigration file.)  Again, this subset of “first person” FOIAs would not be posted.

There is also a belief that there is little public interest in the majority of FOIA requests processed, and hence it is a waste of resources to post them.  This thinking runs counter to the governing principle of the Freedom of Information Act: that government information belongs to US citizens, not US agencies.  As such, the reason that a person requests information is immaterial as the agency processes the request; the “interest factor” of a document should also be immaterial when an agency is required to post it online.

Currently, the FOIA stipulates that “frequently requested” materials must be posted by agencies somewhere in their electronic reading rooms. Both the House Oversight and Government Reform Committee’s discussion draft of FOIA reforms and the Department of Justice’s Office of Information Policy define “frequently requested records” as records that have been requested three or more times. Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breech of the law. Posting FOIA releases online would solve this problem.

Finally, some have argued that posting FOIA releases online is not cost effective.  If fact the opposite is true.  It’s not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail it to the requester and have them slip it into their desk drawer and forget about it.  That, is a waste of resources.  The released document should be posted online for any interested party to utilize.  This will only become easier as FOIA processing systems evolve to automatically post the documents they track.

In general, posting documents as they’re released underscores that these documents belong to the public; enriches debates on important policy issues; eliminates processing of duplicate FOIA requests; and –most importantly in this era of austerity– saves money.  Norway, England Mexico, and other countries utilize this 21st century practice –and any future US National Action Plan should also champion posting documents online as they are released.

As the Obama administration continues to work with its Open Government Partners to firm up the commitments it made in its second National Action Plan, it should make sure not to step back on the essential open government tenet of posting documents online as they are disclosed through the FOIA.  The United States was the first modern country to enact a Freedom of Information Act; it will return to the first tier of Open Governments only when it begins making the documents it releases available online.

 

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