July 25, 2016 – Reporters Committee for Freedom of the Press
by Luis Ferre Sadurni
The Chief FOIA Officers Council, charged with addressing the most important difficulties in administering FOIA across government, met for the first time July 22 to begin the process of implementing a “release to one is a release to all” standard for federal records.
The policy would make agencies release FOIA-processed records to one requester and simultaneously to the general public by posting them online.
Concerns about the policy from both journalists and FOIA officers were addressed at the meeting. Many reporters worry that releasing requested documents to the public would compromise their reporting by allowing others to steal their “scoop.” Agency FOIA officers were troubled by the burden of ensuring records are accessible to all and in compliance with Section 508 of the Rehabilitation Act.
Melanie Ann Pustay, director of the Department of Justice’s Office of Information Policy, and Nikki Gramian, acting director of the Office of Government Information Services (OGIS), co-chair the council. The 103-member council also includes the deputy director for management of the Office of Management and Budget (OMB), the chief FOIA officer of each agency, and any other persons designated by the co-chairs.
Following enactment of the FOIA Improvement Act, the Obama administration charged the FOIA Officers Council and OMB with implementing the policy and addressing journalists’ and agencies’ concerns by Jan. 1, 2017.
At the meeting, Pustay acknowledged journalists’ concerns, but said it’s her impression that view is not universal.
“Some of the journalists are concerned about the ability to have a ‘scoop’ or fear that this would be a disincentive to using FOIA and to work as an investigative journalist,” Pustay said. “At the same time there are journalists who say, ‘Wait a minute, it’s taxpayers’ money and these are public releases. Isn’t it a little ironic for journalists to say they want less transparency?’”
As the Reporters Committee for Freedom of the Press has reported, many journalists have suggested a delay between the requester receiving the documents and posting for the general public. A one-week or month delay, some journalists believe, would allow them to report exclusively on the documents while ensuring proactive disclosure to the public. There is, however, no clear consensus among journalists regarding the policy.
Pustay also noted that journalists would be invited to the next meeting in the fall so they could voice their opinions and offer proposals.
FOIA officers at the meeting noted that the policy would increase the volume of documents their agencies would have to make compliant under Section of 508 of the Rehabilitation Act to ensure that people with disabilities have access to public data. Officers noted that making documents accessible is time-consuming and technologically burdensome.
One FOIA officer at the meeting, who refused to be named, described the “release to one is a release to all” policy as an “unfunded mandate.” Many small agencies, the officer said, currently can’t afford the resources or technology to make documents 508 compliant.
“The administration is asking for more without giving agencies more funding,” said the officer.
Another FOIA officer, who also declined to be identified, noted that making records 508 compliant would “slow down FOIA processing as a whole” in the agency. The officer suggested centralizing the process by creating an office where all government-processed FOIA requests could be sent to be made 508 compliant.
Gramian acknowledged many of the FOIA officers’ concerns.
“If your FOIA staff is spending a lot of time making the records compliant, then they don’t have time to process the records,” Gramian told the Reporters Committee in an interview. “Hopefully while the Chief FOIA Officers Council considers this issue, it should also take into account the amount of staff time that it will take to prepare records for posting and whether there are other staff or resources that can help them with that burden.”
Last summer, the DOJ launched a proactive disclosure pilot program, which assessed seven agencies’ ability to release FOIA-processed records to one requester and simultaneously to the general public by posting them online. The program found, as noted by FOIA officers at the recent Council meeting, problems with 508 compliance.
Some FOIA experts, however, suggested 508 compliance is more easily achievable than some agencies assert. Nate Jones, director of the FOIA Project for the National Security Archive, noted that many agencies already excel at disclosing 508 compliant records. Jones cited the State Department, Air Force, and NARA as exemplary agencies.
“On the one hand, it’s good to see that some agencies have their act together and can do this with no extra expended resources and time. On the other hand, it’s very frustrating that this is not government-wide and that we know now that only 2 out of 100 agencies are doing this common sense practice,” said Jones, who is part of the FOIA Advisory Committee, which met the day before the Council.
The committee, which includes federal employees and representatives from the requester community, met to begin the discussion on solutions to 508 compliance. While the Chief FOIA Officers Council has a White House mandate to issue guidelines on proactive disclosure, the FOIA Advisory Committees issues all of its recommendations to the Archivist of the United States.