No wonder it’s so hard for documents to escape the referral black hole.
Why do some FOIA requests take decades to fulfill? The short answer is the concept of agency “equity” or ownership of documents, and the classification referral system. In sum, the current declassification system mandates that every agency that claims “equity” or asserts “ownership” of a document gets to review it before declassification. And just as they scramble for budgetary pork, agencies rarely see a document that they don’t attempt to claim “equity” over. It is this constant loop of “equity” claims and referrals that leads to our 400 million page backlogs and decades-old FOIA requests.
Usually, this “referral merry-go-round” is hidden from the FOIA requesters—they just know their requests are in a black hole, not what’s happening to them in there. It wasn’t until the National Security Archive sued the Air Force that we knew why our FOIA request from 1997 remained unfulfilled for over a decade. Eventually, Federal Judge Rosemary Collyer ruled that the Air Force had “failed miserably to handle [National Security] Archive FOIA requests in a timely manner” and ordered the agency to fulfill the Archive’s long outstanding FOIA requests and appeals. Most revealing, she ordered the Air Force to present periodic status updates justifying why it was taking such a long time to fulfill Archive FOIA requests.
Thanks to these status updates (here and here), we now have a chance to see what exactly happens to a FOIA request or appeal after it is submitted –and it’s not pretty. While this example is a bit dated –the Archive tries to litigate only as a last resort, and it’s rare for judges to explain step-by-step what is going on with requests in the black hole– the problems encountered by this FOIA request still exist today. In a status update for the litigation, the Air Force issued a ten-page report on its efforts to complete a 1997 request for 1969 documents about Minute Men ICBMs. After finally receiving a heavily excised response from the Air Force, Bill Burr appealed the agency’s decision. Below, we use the Air Force’s court-mandated status report to chronicle the appeal’s ugly journey –a journey including nine agencies claiming “equity,” constant miscommunication, delayed mail, lost documents, lapsed deadlines, and a general sense of indifference toward the FOIA requester.
According to Bill Burr, the Air Force’s response consisted of a “collection of miscellaneous partly or wholly declassified pages, taken out of the context of the parent documents so that it was very difficult to ascertain which page belonged to which document.” No doubt this was due to the constant disassembly and reassembly of the appeal due to the “referral process.” Imagine if the Air Force had not been ordered by a federal judge to “crack the whip” and submit “tracer actions.”
Since the Archive won the release of these documents, there have been some attempts to improve the referral and consultation process, but the fundamental inefficiency remains, as do decades-old open (page 30) FOIA requests, stuck in the referral black hole.
The establishment of the National Declassification Center has had uneven success in cutting through the referral merry-go-round –for documents over twenty-five years old. Improvements that need to be made by the NDC include increasing its relatively low 59 percent declassification rate and ending its “wasteful, expensive” pass-fail page level review. As the Public Interest Declassification Board wrote, the NDC must understand that “clinging to manually-intensive [referral] processes diverts increasing dwindling resources …There must be an understanding and agreement that the current practice of having one, two or more persons conduct a laborious page-by-page declassification assessment for each record under review is an unsustainable practice.” Amen.
In 2014 the Department of Justice Office of Information Policy issued guidance on “Referrals, Consultations, and Coordination”1 which clarified some ambiguities and suggested some potentially beneficial instructions including improved tracking, improved communications with requesters, and that an “agency receiving the referral [should] place the records in any queue according to that request receipt date.” Unfortunately in the National Security Archive’s experience these suggestions are all too frequently ignored by agencies.
The Referral Black Hole keeps sucking requests in and rarely spits them back out.
1. Troublingly, this guidance created a new, even more opaque black hole called a “coordination” where agencies are instructed that they “should not to automatically follow the standard referral procedures.” “For documents involving Intelligence Community agencies,” FOIA processers are instructed to secretly check with the agencies before telling requesters the status of their requests, or processing them.↩
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Challenging government secrecy, informing the public debate through access to declassified documents, ensuring government accountability, and defending the right to know in the US and abroad.
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