Frederick Sadler retired, after serving 40 years with the Food and Drug Administration (FDA). As the Director of its Freedom of Information Act (FOIA) office, he was responsible for administration and implementation of FOIA and Privacy Act (PA) programs.
Question #3: Why is there such a continued emphasis on FOIA request backlogs? We’ve made great progress, but that’s not been acknowledged, and everyone keeps talking about it.
Answer: Let’s be realistic – backlogs have been an issue for well over a decade in both the Federal and requester FOI communities. And while there’s no denying that significant progress has been made over time, the problem still continues and it’s almost a trendy topic of panel discussions at nearly every FOI conference held. Why?
No Thorough Review of the Issue
Maybe it’s because neither the Government Accountability Office (GAO), Congress, nor the Congressional Research Service has ever done a thorough, comprehensive, government-wide review of the issue. And even if that were to happen, any such discussion should be held in strict confidence with the FOI officers themselves, rather than Agency management, who might have a vested interest in presenting the best face possible on the issue. Even leveraging the system as much as I could, I was only able to reduce my previous agency’s backlog from 21,000 to 3,000. Good, but not perfect.
Sure, we prepare and post our Annual Reports, but these don’t analyze the issues or tell the full story. One example of a report analyzing a component data element is the GAO report which focused on the fact that FOI offices don’t really capture the true cost of disclosure-related litigation, which is a required data element of the Annual Report (see https://www.gao.gov/assets/680/679631.pdf ).
GAO did state that a comparatively minor adjustment to the FOIA itself could result in gathering more accurate, substantive data for this cost, but they concluded with the statement “We will update the status of this matter when the Congress acts to consider it.”
From my perspective, this isn’t likely in the near future. So, it behooves agencies to work toward finding alternatives to backlogs (and the litigation that can result) by making full use of the role of the Public Liaison, offering Office of Government Information Services (OGIS) mediation, or trying to find mutually beneficial alternatives. Things can get out of hand quickly, and litigation is expensive and burns scarce resources. Bear in mind that the scarcity could increase in the near future with budget cuts.
Litigation Can Happen
I’m not familiar with all of the salient facts of the recent case against the FBI, and in no way should this be construed as diminishing their successes in dealing with difficult requests – they have a tough job. But the FBI just lost a FOI-based case, based primarily on non-response within statutory time frames because there were 110,000 pages at issue, explaining that their policy was to only release 500 pgs. per month when responding to large volume requests.
Certainly there could have been mitigating circumstances, and without more information, I can’t “arm-chair quarterback” their process. But, weren’t there options, alternatives, negotiations or other ways to approach this without resorting to litigation? The Court’s decision has resulted in pushing the FBI to change its existing policies, and forces them to release up to 2,850 pages a month (See https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv1303-67).
The State Department got pretty much the same response from the DC Circuit, under Judge Jackson, when State claimed that processing requests for former Secretary Clinton’s email would take decades for them to process more than 600,000 records.
Now that much of the agency hiring has have been frozen for months (including FOI offices, along with other operating components), and there is every expectation that there will be potentially significant budget reductions in 2018, we need to look at these constraints while realistically understanding that the FOI rules of the road haven’t changed – other programs may be reduced or even eliminated, but the FOI hasn’t even been mentioned for possible revision.
So, FOI offices can still be sued for non-response within 20 working days, even if they’ve lost staff, can’t upgrade equipment, have legacy databases which practically defy searching, don’t have contract funds, etc.
Hope for the Future
One panel discussion at the July 27 Chief FOI Officers meeting was neatly summarized by OGIS in its blog (see https://foia.blogs.archives.gov/2017/08/02/reflections-on-the-july-27-chief-foia-officer-council-meeting/). It states that “We are in a new era of FOIA. We heard from several panelists and members of the audience that FOIA’s star is rising—the number of requests to agencies across the government grows each year, the number of litigations have also grown significantly, and a new generation of journalists and researchers is harnessing the power of this important tool. Agencies need to be mindful of the expectations of these new requesters who are technology savvy and customer service focused.”
No one would disagree with this, but the question is how to get there.
Continue to consider the options that FOI offices have available to them; gather that data and present it to management as part of your justification to obtain resources and funding. However, as the size of many FOI offices declines in the absence of the ability to backfill vacancies, and funds for various improvements are less available, we all need to think about how to make the best use of the resources that we have.
Technology can certainly be used to help address some of the reasons that backlogs exist, but when it comes to the bottom line, there’s simply no substitution for a line-by-line, word-by-word review and redaction. It’s all about education and training, reasoning, understanding, experience, and most of all communication with the requester community.
FOIAXpress software by AINS is the pioneering technology solution making significant strides for the FOIA professional by automating the FOIA request process in a way that saves agencies time and money, while ensuring compliance with requirements. Customers leverage this powerful solution to manage the entire lifecycle of a FOIA request from initial request to final delivery of documents, including request management, document review and redaction, correspondence management, document management, fee/payment management and reporting.
I will be presenting at this year’s FOIAXpress User Conference & Technology Summit on October 25, 2017 at the Marriot Marquis, D.C, where I will be discussing backlogs in much further detail, alongside Richard Huff. Nikki Gramian, Deputy Director of OGIS, will also be presenting.
Visit the conference website for more information. http://info.www.ains.com/2017-FOIAXpress-User-Conference.html