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In Second Meeting, FOIA Advisory Committee Tackles Litigation Review, 508 Compliance, and Fee Issues

October 29, 2014
Image from FOIA Advisory Committees second Meeting. Video for meeting found here: https://www.youtube.com/watch?v=xL_X4-VHr9A&feature=youtu.be, note that audio begins around the 32 minute mark.

Image from FOIA Advisory Committee’s second Meeting. Video for meeting found here: https://www.youtube.com/watch?v=xL_X4-VHr9A&feature=youtu.be, note that audio begins around the 32 minute mark.

The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” held its second meeting last week. The Committee consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Coordinator Nate Jones – and previously identified FOIA oversight and accountability, proactive disclosures, and fee issues as their primary focus areas. Their latest meeting was dedicated to subcommittee reports on these issues, including the alluring possibilities of  conducting a litigation review, easing 508 compliance, and addressing FOIA fee issues and fee-related animosity. Now that the Committee has accurately assessed the greatest areas of concern, the coming months and meetings will tell if the Committee has the tools to fix them.

The subcommittee on FOIA oversight and accountability reported several steps would need to be taken to determine how to improve both, including identifying what current authorities for oversight exist, and areas where there are opportunities for additional oversight. Most importantly, however, the FOIA oversight and accountability subcommittee suggested evaluating past litigation review efforts to determine if another review is necessary to cut down on litigation and increase administrative solutions to FOIA disputes. This is a crucial step as the Department of Justice’s (DOJ) current stance on FOIA disputes is a “defend everything” one. While the 1993 FOIA litigation review “of the merits of all pending and prospective FOIA litigation cases in accordance with the Department’s new FOIA policy standards” conducted by Attorney General Janet Reno led to the “complete resolution” of more than a dozen FOIA lawsuits, there has been no evidence that the Department of Justice has conducted a similar review since the beginning of the Obama administration. Additionally, despite a pledge from DOJ Office of Information Policy (OIP) director Melanie Pustay to provide the Senate Judiciary Committee a list of all FOIA cases that the DOJ has refused to defend, no such list has been presented to the public. Conducting a full litigation review would go a long way to strengthen the government’s and the Department of Justice’s commitment to FOIA.

The State Departments Electronic Reading Room.

The State Department’s Electronic Reading Room.

The proactive disclosure subcommittee, which is interested in finding a data set of raw requests to help determine how agencies can best “preemptively post[] sought-after government information online,” noted the FOIA already requires two kinds of proactive disclosures. The first concerns various types of information agencies must publish in their federal register chapters, and the second details information agencies must publish in their electronic reading rooms – including “frequently requested records,” which OIP defines  as records that have been requested three or more times. It is understandably 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 after the first release would solve this problem. There are several agencies that do this to different degrees; the Environmental Protection Agency and several other agencies post their FOIA releases to FOIAonline, and the Department of State posts documents released in response to FOIA requests quarterly.

According to many inside the government, one of the primary challenges to improving proactive disclosures across the government is ensuring that the posted documents are “508 compliant,” which refers to a 1998 statute requiring federal agencies “to make their electronic and information technology (EIT) accessible to people with disabilities.” While many agencies argue that making documents 508 compliant is too burdensome, all documents posted to FOIAonline are 508 compliant, as are the documents posted by the Department of State, and every document created electronically by the US government after 1998 should already be 508 compliant. A 2010 Department of Homeland Security guide also shows that making documents 508 compliant is not taxing, and 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.  If it’s possible to make older documents that were scanned from paper 508 compliant, there should be, at the very least, no such excuse with digital records.

From OIPs FY2013 FOIA Summary.

From OIP’s FY2013 FOIA Summary.

Finally, the subcommittee addressing fee issues reinforced the need to reduce fee-related animosity. OIP’s Summary of Annual FOIA Reports for FY 2013 noted that the amount agencies recouped through FOIA fees in FY2013 “amounts to just less than 1% of the total costs related to the government’s FOIA activities,” which begs the obvious question of how necessary fees are in the first place. From the perspective of the requester community, charging fees can be seen as a ploy to discourage FOIA requests, while FOIA officers argue fees are a necessary tool to encourage requesters to narrow the scope of their requests.

A brief debate took place during this subcommittee report concerning agencies charging fees when they’ve missed their 20-day deadline to process a FOIA request. The 2007 OPEN Government Act mandates that agencies are not allowed to charge search and reproduction fees if an agency misses their deadline to process a FOIA request — something that some argue agencies should explicitly state in their communication with requesters –, however many agencies have eluded this fee improvement simply by labeling requests as “unusual” and claiming that these “unusual” requests are unprotected by Congress’s legislation.  Anne Weismann from Citizens for Responsibility and Ethics in Washington (CREW) astutely noted that the debate was symptomatic of precisely the kind of frequent animosity that occurs over fees before agencies even begin processing FOIA requests. At the very least, this subcommittee has pledged to find ways to reduce disputes over fees by clarifying several issues, including the practice of charging FOIA fees if agencies miss their response deadlines.

The FOIA Advisory Committee has aptly identified the key areas in need of fixing. Hopefully it will be able to discuss these solutions in the open online and subsequently “deliver solutions,” –not just discuss them. The Committee’s next meeting will be held January 27, 2015, and will be live-streamed.

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