U.S. Commits, Yet Again, to Modernizing Administration of Freedom of Information Act
BY Alex Howard | Thursday, October 31 2013
As part of its participation in the international Open Government Partnership (OGP), which is now holding its annual summit this week in London, the United States government is committing to further open government data, improve its management of natural resources, engage citizens in innovation and, perhaps most significantly, modernize the administration of the Freedom of Information Act (FOIA). That last item is most important. The United States has had a FOIA law since 1966, and it was expanded after the Watergate scandals. It's a critical tool for the press to hold government accountable. Compliance with FOIA, however, has long been a mixed bag.
The enactment of FOI laws are a flagship commitment in the national action plans of many countries in the OGP. Brazil passed its FOI law last year; others have been challenged to do so, like the Phillipines. Tanzania has committed to doing so; I watched Rajesh Rajani, the incoming civil society chair of OGP and founder of Twaweza, an East African NGO, nudge the President of Tanzania to follow through on making it meaningful on stage this morning.
Unlike "open data portals," FOI laws that provide a right of access to media and citizens are a more fundamental reform and harder to take down. Indeed, the mixed success of Kenya's open data initiative appears deeply affected by the lack of a FOIA law.
The newly released preview of the National Action plan carries with it an inherent challenge from the beginning: the U.S. chose the goals it will then work to achieve. In the report, the administration claims credit for having completed 24 of 26 items in the first National Action Plan, a record that a report (PDF) by civil society organizations in the United States was grading on a curve.
This second plan was at least influenced by the input of a coalition of civil society organizations and, in theory, public input solicited through multiple channels online. That influence might well have expressed itself in the inclusion of FOIA reform, something that President Obama addressed in an Open Government Memorandum to on his first day in office but has not carried though on in the years since. As the Government Accountability Office detailed in a report (PDF) this September, many agencies have not acted to evaluate and improve their FOIA compliance since.
The administration published the draft plan this morning as part of a blog post on Whitehouse.gov touting "open government progress." The post, authored by Gayle Smith , special assistant to the President and senior director for development and democracy and Nick Sinai, United States deputy chief technology officer, was published as the Open Government Partnership's annual conference kicked off in London.
"As we work with stakeholders to complete our second National Action Plan, we will continue to take steps to further support a vibrant civil society – both in the United States and around the world," write Sinai and Smith. "Over the next year, the Administration will continue to intensify and broaden engagement with civil society, as well as work together with the international community to roll back and prevent new restrictions on those who seek to have a voice in their societies, and identify and share best practices and innovative approaches to help civil society succeed."
Broadly, there are several commitments in this preview of the second National Action Plan. (A final version is promised "later this year.")
First, the administration is committing to further open data (of its own choosing) to the public. This is a continuation of previous policies and commitments. Releasing more information to the public is the most significant accomplishment of this administration, with respect to open government. The new plan commits to managing government data as an asset, launching an improved Data.gov, and opening agriculture, nutrition and disaster-related data.
Second, the administration is committing to additional government fiscal transparency, corporate transparency and consumer market transparency. In the plan, the White House commits to creating a "real-time dashboard showing performance and safety issues for certain consumer products" and to "engage a wide range of stakeholders and users of Federal spending data to determine how best to improve the user experience of USASpending.gov." In both areas, the salient issue is producing better data. As the Sunlight Foundation has highlighted at Clearspending.org and recent efforts to report on the contractors behind Healthcare.gov using USASpending.gov data, there's still a long way to go on quality. Similar, the plan's commitment to "make federal spending data more easily available in open and machine-readable formats" would be
Third, the administration is committing to additional transparency on revenues derived from natural resources that come from public lands, detailing further plans to implement the Extractive Industries Transparency Initiative (EITI). As noted in The Economist in 2011, this is one of the most significant outcomes of U.S. involvement in the OGP. As detailed in the report, the Administration intends to publish the first U.S. EITI report in 2015, to achieve EITI compliance in 2016, and "begin to publish annual reports on U.S. Government spending on fossil fuel subsidies." For people interested in more transparency into the immense revenues associated with oil, coal and natural gas -- and subsidies that the extractive industry receives -- this is good news.
Fourth, the administration is committing to "expand opportunities for public participation in government," specifically referring to the development of regulations and "scaling the use of open innovation methods such as incentive prizes, crowdsourcing, and citizen science." This is effectively "more of the same," in terms of projects like Challenge.gov or other initiatives that federal agencies have experimented with over the past few years, but given the success of open innovation in the private sector, the approach to confronting national challenges through contests looks set to endure in Washington for a few more years.
Finally, and from this observer's perspective, most significantly, the administration is committing to reforming administration of the Freedom of Information Act, implicitly acknowledging significant issues with the performance of the federal government.
How? Through a "consolidated request portal," developing common FOIA regulations and practices, improving internal processes, establishing a FOIA modernization committee and improving training.
While all of these improvements would be welcome if delivered upon, it's not immediately clear where additional funding will come from or whether the White House will push agencies for better FOIA performance, particularly with respect to long lags for requests made to national security agencies, the Department of Homeland Security that all too often return heavily redacted documents. The state of FOIA in the United States, fairly judged, is not as strong as it should be.
While the administration launched the promised FOIA portal to the public last October, agencies remain far behind on fulfilling requests. Still, given the outdated FOIA policies that the National Security Archive at George Washington University found in a report in December 2012, this nudge from the White House is long overdue.
Following is the relevant section, excerpted in full:
The United States is committed to further modernizing FOIA processes through the following initiatives:
Improve the Customer Experience through a Consolidated Online FOIA Service
More than 100 Federal agencies are subject to FOIA. For the average requester, this can mean significant energy spent searching for the right agency and navigating its website to figure out the unique process for submitting a request to that agency. The Administration will launch a consolidated request portal that allows the public to submit a request to any Federal agency from a single site and includes additional tools to improve the customer experience. The United States will establish a task force to review current practices, seek public input, and determine the best way to implement this consolidated FOIA service.
Develop Common FOIA Regulations and Practices for Federal Agencies
Certain steps in the FOIA process are generally shared across Federal agencies. Standardizing these common aspects through a core FOIA regulation and common set of practices will make it easier for requesters to understand and navigate the FOIA process and easier for the government to keep regulations up to date. The Administration will initiate an interagency process to determine the feasibility and the potential content of a core FOIA regulation that is both applicable to all agencies and retains flexibility for agency-specific requirements.
Improve Internal Agency FOIA Processes
Over the past few years, several agencies have analyzed existing FOIA practices and used this information to make dramatic improvements in their backlogs and processing times, as well as to increase the proactive release of information in the public interest. The U.S. Government will scale these targeted efforts to improve the efficiency of agencies with the biggest backlogs, and to share broadly the lessons learned and strategies to further improve internal agency FOIA processes.
Establish a FOIA Modernization Advisory Committee
Improvements to FOIA administration must take into account the views and interests of both requesters and the Government. The United States will therefore establish a formal FOIA Advisory Committee, comprised of government and non-governmental members of the FOIA community, to foster dialog between the Administration and requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.
5. Improve FOIA Training Across Government to Increase Efficiency
In order to efficiently and effectively respond to FOIA requests, every Federal employee — not just those in an agency’s FOIA office — should fully understand the FOIA process. The Administration will make standard e-learning training resources available for FOIA professionals and other Federal employees and encourage their use.
It's worth noting that these FOIA commitments are also not entirely new and come in the context of years of interagency wrangling between the Justice Department and other agencies. Last March, as Sarah Lai Stirland documented at TechPresident, it looked like these differences were finally resolved, with the EPA's FOIA portal adopted as the model.
The rest of the commitments, however, have to be balanced with the record of the Office of Government Information Services, the office within the National Archives and Records Administration that the Open Government Act of 2007 established to review agency Freedom of Information Act policies and compliance. Despite its mandate to pursue the very reforms detailed in this report, limited funding, staffing and an administration that has appeared focused on spending political capital on other issues have combined to result in incomplete implementation of the office's stated goals.
Given the proliferation of automated FOIA requesting services like MuckRockNews or FOIA Machine or "SARAH, demand for improved compliance online is only look likely to increase. While training, improved regulations and a "portal" may help, the administration might seriously benefit from developing or adopting a service like the RecordTrac system created for Oakland and moving to implement another aspect of President Obama's open government promises: making open the default. Given the costs of FOIA compliance, declassifying and publishing much more data by default would save the country money and improve the public's access to information. A recent report by the Wall Street Journal documenting the widespread use of FOIA by hedge funds to goet market intelligence also showed two things: where value lies in government data and a lack of proactive disclosure in federal government.
Given the administration's achievements in open data and newly professed commitment to compliance with the Freedom of Information Act, one of the most significant ways agencies could reduce processing costs and reduce information asynchronies in the market would be to track FOIA requests from the private sector and move to publish repeatedly requested data and information online. Whether this administration makes that adjustment or not will be one of many, many factors upon which the world will judge its adherence to the open government goals that President Obama set out upon taking office.
[Clarification: This post has been updated to more correctly describe the origin and evolution of the Freedom of the Information Act in the U.S.]
Alex Howard is currently a Fellow at the Tow Center for Digital Journalism at Columbia University and a Fellow at the Networked Transparency Policy Project of the Ash Center at Harvard University.