To Be the Global Transparency Leader, the US Must Publish FOIA Releases Online
The US was the first country to enact a modern Freedom of Information Act, and was the model other countries looked towards when crafting their own FOI laws. Now, however, the US lags behind the world’s transparency leaders, and, if the US hopes to catch up, it must embrace the technology mandates of the 1996 E-FOIA Amendments and the 2007 OPEN Government Act. The best ways for the US to do this is by posting FOIA releases online, and convert its mostly analog FOIA process to a digital one.
Agencies are quick to argue why they don’t want to post FOIA releases online and why the practice wouldn’t work, and we have already dedicated a posting to rebutting these arguments, along with reasons why posting FOIA responses would not only work, but is imperative.
The point of today’s posting is to observe some of the world’s best practices. Countries like Mexico, the United Kingdom, Australia, and Norway all do a better job in some respects than the US when publishing public information electronically, and the US should incorporate and improve upon their best practices. If you know of any other examples of countries that have better FOI practices than the US currently does when it comes to posting FOI releases online, please leave them in the comments.
Mexico has one of the most sophisticated electronic FOI filing systems around. Through the system, called Infomex, a requester can search to see what’s already been requested and released across the Mexican federal government. If records responsive to an FOI request are in digitized form, they are uploaded to Infomex once they are released, and are available for public viewing and download. If records responsive to requests are not already digitized, however, they are generally not uploaded to the system, but Infomex still reports how the agency responded to the original request. The entire filing system is overseen by the Federal Institute for Access to Public Information (IFAI), which also handles appeals. While the Mexican filing system isn’t perfect, an obvious benefit if the US had a similar practice would be the elimination of cases where an agency releases a document in full after an initial FOIA request, only to release it with redactions in response to later ones.
Similarly, while the UK’s FOI law has been the subject of heated debate, it does mandate the publication of its corporate FOI releases. Last September, the Wall Street Journal published an article on how US hedge funds and other commercial enterprises utilize the FOIA to “obtain potentially market-moving information about products, legislation, regulation and government economic statistics” in what the article described as an “information arms race.” Daniel Schuman of the Citizens for Responsibility and Ethics in Washington correctly notes that problems arise when the government doesn’t fulfill its legal obligation to publish these records after they have been requested. Currently, the US FOIA stipulates that “frequently requested” materials, which the Department of Justice defines as records that have been requested three or more times, must be posted by agencies somewhere in their electronic reading rooms. The FOIA additionally stipulates that agencies must “publish any record that has been released to any person and is likely to become the subject of additional requests.” As the Journal points out, responses to commercial requests fall into this category due to their ability to drive markets, impact the stock market, and ultimately what products become available to consumers. The US’ current practice of not releasing this desirable information manipulates markets by giving an unfair competitive advantage. To fix this, the US must begin posting commercial responses online as the FOIA mandates, and then fully fulfill the spirit of the FOIA by posting all responses online, period.
Amendments to Australia’s Freedom of Information Act that were enacted November 2010 “require agencies to publish information in a disclosure log within ten working days after the freedom of information (FOI) applicant was ‘given access’ to a document.” The disclosure logs are updated every Friday afternoon and cover, with some exceptions, requests from the previous week, and copies of the documents can be obtained via email requests. This practice of promptly posting FOI logs serves the public interest, and hasn’t, as some have worried, had an adverse impact on investigative journalists trying to get their exclusives. The E-FOIA Amendments of 1996 require US agencies to maintain and publish indexes of processed FOIA requests, though it does not specify how regularly these indexes or FOIA logs must be updated. Some agencies, however, like the Department of Homeland Security, have taken the initiative to post their FOIA logs online quarterly in order to provide the public an idea of what’s been requested, released, and who filed the request. The US should improve on Australia’s practices by not only requiring that all agencies post their FOIA release logs online regularly, but also requiring agencies to hyperlink to the responsive documents in their FOIA logs as well.
Norway’s Electronic Public Records (OEP) provision requires that federal agencies publish a daily register of metadata to an online access portal, which allows users to search all records across the government to make FOI requests. Currently, approximately 100 Norwegian government agencies use OEP to upload their public records, all doing so daily and according to a standard entry format, and these entries are then compiled into one common OEP database. While the OEP does not store the actual documents themselves, the single metadata repository includes the document’s case number, document title, sender/recipient information, exemption authorization, document date, and contact details for the authority responsible for the document. The US should improve on Norway’s OEP initiative not only by requiring agencies, either in a single repository or on an agency by agency basis, to regularly upload contact information that would make filing FOIA requests less cumbersome for requesters, but also by requiring agencies to regularly upload previous FOIA releases. This would not only boost the US’ transparency bona fides, but it would also save FOIA officers the trouble of processing multiple duplicate FOIA requests.
Of course, several agencies, including the and Department of State, Department of Defense Washington Headquarters Services, the Interagency Security Classification Appeals Panel, 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. Not requiring all agencies to post documents online as they are released through the FOIA is a key misstep that is at odds with basic transparency principles of opening up government data for greater accountability, creates more work for both requesters and agency FOIA officers, costs more money, and leaves the United States in the second tier of Open Governments. The FOIA bill currently being drafted in the Senate is a prime opportunity to mandate that, aside from specific caveats including “first-party” requests made by requesters for documents about themselves and documents that are not already digitized, agencies’ default policies should be to post FOIA releases created after February 7, 2000, online. (The Section 508 Amendment to the Rehabilitation Act of 1973 specified that not later than February 7, 2000, all documents must be created digitally in formats accessible to people with disabilities.)
The United States was the first country to enact a modern Freedom of Information Act; it will return to the first tier of Open Governments only when it more fully enters the 21st century and begins making the documents it releases available online.