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Here's the Future of Open Government, Courtesy of ... The Environmental Protection Agency?

BY Sarah Lai Stirland | Monday, March 26 2012

Image: Shutterstock

Several members of Congress got a tantalizing glimpse of one possible model of the future of open government recently, and it didn't come from the Justice Department, the agency at the federal level that is primarily in charge of ensuring agencies' compliance with Freedom of Information Act.

Instead, the model came from the Environmental Protection Agency.

If everything goes according to schedule, by October 1 members of the public should be able to file FOIA requests through a single portal simultaneously to several different federal agencies, and be able to track the progress of their requests online. Once made available, those documents would also be stored in the system and would be searchable online for the wider public, and not just to the requester.

That, at least, is the vision of the creators of the portal, and the many open government groups convened by the EPA late last year for a consultation on the project.

The EPA is partnering with the Commerce Department and the National Archives and Records Administration to develop the portal, but the project managers working on the project at the EPA say that several other agencies are interested in joining the effort. The EPA conducted the equivalent of a roadshow for its concept across the federal government last fall, soliciting requests for features, which its project managers are incorporating into the system. Presentation documents created by EPA staffers say that the Department of Defense, the Department of Homeland Security, the Department of Health and Human Services, the Department of Housing and Urban Development, the Treasury Department and the Social Security Administration have all been briefed, have expressed support and are involved.

"The multi-agency FOIA Portal (Module) will provide the public with a point to submit FOIA requests, track progress of requests, communicate with the agency processing the request, search other requests, access previously released responsive documents, and file appeals with any agency that participates," according to a statement sent to techPresident by the EPA in response to an interview request with one of the project's managers. The EPA declined to make any project managers available for an interview.

The new system being developed by the EPA is notable because it’s a sign that President Obama’s high-level commitment to a transparent government might still be alive. Although the president signed an executive order and sent out a memo to agencies about operating more transparently on his first day in office, the administration’s actual record on the subject is mixed. An Associated Press analysis released in mid-March showed that across 37 agencies, those agencies turned over all or part of the records requested in 65 percent of the cases considered, a minor improvement over its previous year’s record, with the rest of the requests being rejected. The administration’s own calculations put that number at 93 percent because it excludes from its calculations requests in which the records either couldn’t be located, when the requester refuses to pay for copies, or when the government decides a request is improper under the law.

George Washington University’s National Security Archive further brought attention to the administration’s record in February when it awarded the Justice Department the “Rosemary Award,” for worst open government performance in 2011. The award is named after President Richard Nixon’s secretary Rose Mary Woods, who deleted eight-and-a-half minutes of a taped conversation that was crucial to the Watergate investigations. The center said it dished out the award based on a variety of factors, which include Justice’s record of going after whistleblowers and proposing new rules that would allow the government to lie about the existence of records in FOIA investigations.

But both the AP’s analysis and testimony delivered at a House Oversight and Government Reform Committee last Wednesday by Melanie Ann Pustay, the DOJ’s director of its Office of Information Policy, suggest that another factor at play is that federal agencies — and the Department of Homeland Security in particular — can’t keep up with the growing number of FOIA requests.

In fiscal year 2011, for example, the federal government received 644,165 requests, up eight percent from the previous year. DHS, for its part, saw a 35 percent increase in the number of FOIA requests it received.

So a document management system on the back-end that could make the processing of such requests in the face of such increases would seem to make sense. The new FOIA portal is an attempt to help agencies to better navigate through the sea of requests.

"For agencies, the FOIA Portal will offer a secure login access web site to receive and store requests, assign and process requests (consult and refer with other agencies), post responses online, and provide metrics to DOJ for annual reporting as well as internal report generation, and manage records electronically," the EPA told techPresident. "Agencies will also be able to search and reuse responsive documents that were released from earlier requests, which will allow them to recapture their previous efforts and hopefully increase their efficiency."

But the Justice Department has been working on a parallel project, and operates FOIA.gov, a Web portal of hyperlinks to federal agencies’ individual web pages with FOIA contacts and web forms that feed into the disparate technical systems that each agency operates to process FOIA requests. In contrast to Justice’ portal, EPA’s system would standardize the FOIA processing system across the federal government.

Last Wednesday, both competing systems were on display in front of the technology subcommittee of the House Government and Oversight Committee, which was holding a hearing about the different systems. It wasn’t clear how the two departments would work together to come up with one workable system for the public.

Andrew Battin, the EPA’s director of information collection, said during the hearing that the two departments were talking about “harmonizing” the two approaches to modernizing how the government manages FOIA requests.

“We have begun a series of conversations about each organization’s electronic tools to understand in greater detail in the near term any technical co-ordination needs, and to identify any potential future complementary capabilities,” he said.

But DOJ's Pustay appeared more combative. When asked by the committee Chairman Mike Kelly, a Republican from Pennsylvania, why the DOJ is developing its own portal instead of working with the EPA, she declined to answer the question, responding: “We actually just launched our portal, so we’re done, and there are more than 100 agencies that have online request portals.”

But the capabilities of the EPA portal far outstrip the Justice’ system, Sean Moulton, director of federal information policy at OMB Watch, told the members of the committee during the hearing. That’s because the system would provide one consistent interface to both government users and the public, assign requestors tracking numbers to track their specific requests, and manage the process on the back-end and enable the different government agencies to consistently co-ordinate with one another.

“It really is trying to put all the modern improvements and modern advances that have been developed for FOIA in one place,” he said during the hearing.

It isn’t clear why DOJ doesn’t appear to be enthusiastic about the EPA’s system.1 A query sent to DOJ about the future of FOIA.gov, which it launched a year ago, and how it might be integrated with the EPA’s system, went unanswered. When techPresident asked EPA the same question, the EPA responded: “EPA can not comment on what DOJ is or is not doing with their FOIA process.”

Unlike the multi-agency document management system being built by the EPA, FOIA.gov serves more as an educational resource and briefing system about the FOIA process. It also has a search function and links to various agencies’ sites, but doesn’t have the functionality envisioned by the EPA and the outside FOIA watchdog groups.

Instead, the Justice Department is currently using litigation software to manage FOIA requests, Pustay told the House Oversight and Government Reform Committee last week.

“Agencies often have to manually review hundreds, if not thousands of pages of paper and electronic records for both responsiveness and duplication before disclosure analysis can be made,” she said. “By utilizing eDiscovery tools to perform some of these administrative tasks, agency FOIA staff can focus their efforts on reviewing records for disclosure, and providing a timely response. [The Office of Information Policy] has already begun using this technology and we will continue to develop its capabilities with the goal of helping all agencies employ similar tools for the overall benefit of FOIA administration.”

She added that her office is “researching technologies that will improve the FOIA consultation process by allowing multiple components and agencies to review and comment on materials simultaneously,” but stopped short of explicitly committing the department to the EPA’s system.

There are hints, however, that the future lies in the EPA’s system, which is projected to cost $1.3 million to develop. Project managers expect the annual operating cost of the system to range from $500,000 to $750,000.

That’s because the White House’ Office of Management and Budget has committed to a “shared services” strategy, requiring agencies to lower information technology costs across the federal government by building standardized information management architectures that can be reused by different agencies. EPA’s FOIA portal has taken its model from Regulations.gov.

“The FOIA portal is similar to Regulations.gov because it replicates its fundamental model – addressing a common line of business through shared services, shared governance, and shared costs,” the EPA said in its note to techPresident.

White House’ OMB in 2004 issued a memo that directed all federal agencies to use Regulations.gov, the centralized repository of information about all current federal rulemaking, once it became operational. Prior to the introduction of the portal, each agency published their rules and rulemaking proceedings either through their own web sites or through the Federal Register. It isn’t hard to see the same rules being applied to the federal system for managing FOIA requests.

Ultimately, Congress might be required to step in to clarify lines of authority, since it isn’t clear who would ultimately oversee the government electronic FOIA system – Justice or the Office of Government Information Services (OGIS,) the office within NARA that has been working with the EPA to develop the system. Congress created OGIS in 2007 as a result of the Open Government Act, a law that updated FOIA. The goal was to create a watchdog agency to enure that FOIA was actually working, and if it wasn’t, to create recommendations on how the system could be improved.

Whatever happens, open government advocates are watching the process unfold with eager eyes. Some hope that state and local governments might be able to piggy-back off whatever the EPA, Commerce and NARA eventually come up with, so that they too, can save time and money and speed up response times.

"An open source web tool for processing Freedom of Information requests would be an incredible boon to state and local governments --- and the public they serve,” said John Kaehny, executive director of the New York transparency group Reinventalbany.org. “Towns and counties lack the scale of big federal agencies, and they typically don't have automated processes for responding to FOIL requests and managing documents. Even states and big cities would reap big benefits from a portable national [Freedom of Information Law] tool.”


1. In response to Monday's article about the EPA's FOIA portal, DOJ's Director of the Office of Information Policy Melanie Pustay sent along the following statement: “The goal of the Attorney General’s FOIA Guidelines is to apply the presumption of openness in an effective and efficient way to provide for improved transparency. In the Attorney General’s FOIA Guidelines all agencies were directed to look for ways to increase efficiencies and to explore greater use of technology to improve the FOIA process.

The Office of Information Policy (OIP) supports all agencies’ efforts to further that directive. To facilitate that process OIP has convened an inter-agency working group on technology to provide agencies with a forum to share information about the wide variety of ways in which technology can be used to improve the FOIA process. OIP is also working individually with EPA as it is developing its FOIA module and looks forward to seeing the project develop. All innovations in FOIA administration, big and small, are welcome. “