Responding to Attacks on FOIA Reform and H.R. 653

Ms. Nesbit testifying on the importance of FOIA reform.

This morning the House Committee on Oversight and Government Reform’s Subcommittee on Government Operations had its first hearing of the session(!) on “Ensuring Government Transparency Through FOIA Reform.” Witnesses included Miriam Nisbet, former director of the Office of Government Information Services (OGIS), Rick Blum, Director of the Sunshine in Government Initiative, and Fred Sadler, a former FOIA officer for the Food and Drug Administration. Earlier this month, Archive FOIA Project Director Nate Jones outlined why the simultaneous introduction of popular, bipartisan Freedom of Information Act bills in both the House (H.R. 653) and the Senate (S 337) is a good sign for those who want the release of more government documents, more quickly, to more people.  Many of his arguments were reiterated by Mr. Blum and Ms. Nisbet throughout the hearing. Mr. Sadler, on the other hand, testified that, “Clearly, the statute is functioning well, in the main” and argued against most of the House bill’s FOIA reforms.¹  Below are the National Security Archive’s responses to several of his arguments.

Early in his testimony while discussing possible improvements to the referral process, Mr. Sadler argued that “complaints need to be tempered,” as referrals are a critical part of the FOIA process.  

That referrals are a reality in the FOIA process is not up for debate, nor is the fact that referrals are a major factor contributing to FOIA delays. The Society for Historians of American Foreign Relations (SHAFR) argues in its 2014 FOIA Implementation Report that “explicit and specific rules about what can be ‘equity’ information, strictures as to how long a third party agency can hang onto its interests, and guidelines as to whether particular agency interests can impede the general move to declassification” would help fix the referral issue, thereby further improving FOIA wait times and backlogs.  The National Security Archive has experienced decades-long FOIA delays due to referrals.  One 1983 document was referred to 14 different agencies for a crack at censorship.

Mr. Sadler also expressed concern that codifying a “foreseeable harm” test (the current policy advocated by both the President and the Attorney General) would lead to increased FOIA litigation.

The proposed legislation strengthens the FOIA Ombuds, OGIS, and fixes FOIA loopholes, which will both help to cut down on the fee disputes, lack of communication, and improper withholdings  that often lead to litigation.  At any rate, it was a bit strange to hear a recently retired FOIA director claim that the Presidential instructions his office was supposed to have been following should not be codified.

Mr.  Sadler’s testimony also raised the specter of 508 compliance, arguing that making documents 508 compliant is too costly, too burdensome, and not presently feasible.

According to many inside the government, one of the primary challenges to improving proactive disclosures is ensuring that the posted documents are “508 compliant.” Section 508 has required agencies to ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts since 1998.  Despite his protestations, Sadler essentially admitted this at 1:16 in the video.  He states that his largest issue is with documents “submitted” to the agency in non-508-compliant format.  This is a very small subset of documents, and no reason to torpedo the idea of proactively posting FOIA releases.

Despite arguments that making documents 508 compliant is too burdensome, all documents posted to FOIAonline (by agencies such as the Environmental Protection Administration, the National Archives and Records Administration, the US Navy, and others) are 508 compliant, as are the documents posted by the Department of State. A 2010 Department of Homeland Security guide also shows that making documents 508 compliant is not taxing, and even older paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat.  Even if its prohibitive to make older documents that were scanned from paper 508 compliant, there should be, at the very least, no such excuse for digital records.

Sadler and others have argued that posting FOIA releases online is not cost effective.  In fact the National Security Archive believes 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 them to the requester and have them slip them into their desk drawer and forget about them.  That, is a waste of resources.  The released documents 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.

The latest Archive audit highlighted just how outdated many agency FOIA regs are.

Mr. Sadler stated that requiring all agencies to update their FOIA regulations within 180 days of the bills’ passage is inefficient, and countered that allowing the Department of Justice’s Office of Information Policy (OIP) to craft a single, government-wide set of FOIA regulations would be preferable.

Currently, over half of federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements.  By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.

Additionally, having OIP crafting government-wide regulations would bear watching; OIP proposed FOIA regulations in 2011 that would have — among many other FOIA setbacks — allowed the Department to lie to FOIA requesters, eliminated online-only publications from receiving media fee status, and made it easier to destroy records.

Mr. Sadler also noted that the categories of records that agencies are required to proactively post online are not clear enough, though recent government efforts to post various databases online have been successful.

The E-FOIA Amendments of 1996 explicitly lists several types of records agencies must publish proactively in their electronic reading rooms – including agency FOIA regulations, annual FOIA reports, agency opinions and determinations, policy statements and interpretations, agency FOIA manuals, records “likely to become the subject of subsequent requests” and “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, now nearly twenty-year-old, law. Proactively posting FOIA releases after their first release, however, would solve this problem and undoubtedly help agencies cut down on their FOIA backlogs. 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.

Finally, Mr. Sadler cryptically warned the Committee against “making determinations based” on media reports on the increase of “certain exemptions” – likely referring to FOIA’s exemption b(5)

Perhaps Mr. Sadler remembers that it was the White House that initially pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with “a presumption in favor of disclosure” with respect to FOIA.

Those times have changed.  Widely cited statistics compiled by the Associated Press show b(5) use is at an all time high. It was invoked 81,752 times in 2013 (applied to 12 percent of all of 2013’s processed requests) to deny information. The concern surrounding the increasing use of b(5) – that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public – does not arise solely from the number of times it is invoked, however, but also from mounting evidence that it is increasingly being used as a catch-all exemption.

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more.  President Obama’s adviser John Podesta has even called it the “withhold it because you want to” exemption.

The National Security Archive is thrilled the Committee is eager to tackle FOIA reform early on in this legislative session.  This endeavor was helped by the excellent FOIA questions asked by Chairman Mark Meadows (R-Nc) , Ranking Member Gerry Connolly (D-Va), and Representatives Mick Mulvaney (R-Sc), Stephen Lynch (D-Ma), and Thomas Massie (R-Ky).  Additional thanks is due to Chairman Darrell Issa (R-Ca), Ranking Member Elijah Cummings (D-Md) and Mike Quigley (D-Il), who introduced this bill.  We are confident the FOIA Oversight and Implementation Act is strong enough to overcome its detractors.

---

^{1. Mr. Sadler also added a bit of levity to the hearings when he described how the text of a document about energy bar ingredients that initially included the words “allergy inducing” was altered during an American with Disabilities Act compliance measure to errantly read “orgy inducing.”}

^{After a chuckle, further inspection of this anecdote is bizarre and troubling.  Mr. Sadler himself  testified that the document in question was a Microsoft Word document which is already digitally readable (ADA and 508 compliant).  If that was the case, it’s strange and inefficient that the FDA chose for some reason to re-OCR a file already 508 compliant and make it incorrect.}

^{At any rate, this tale of an “orgy inducing” energy bar does little to negate the need for robust proactive posting of documents released under FOIA.↩}