Better tech, stronger disclosure policies could improve FOIA — experts

Congress should push agencies to make information from frequently requested records categories more readily available — and streamline the technology used to handle Freedom of Information Act requests, experts said at a recent hearing.

At a Tuesday Senate Judiciary Committee hearing, panelists and senators celebrated FOIA reforms signed into law in June, but they also noted that Congress could to more to make the open records law effective.

“We should bear in mind that a new administration will soon be moving in,” said Republican Sen. Chuck Grassley of Iowa, chairman of the Senate Judiciary Committee, in his prepared statement. “So it’s important to ask how we can work to secure a commitment to transparency from day one.”

He added, “By releasing information before it’s requested, agencies could go a long way towards reducing delays and improving transparency.”

The biggest issue with FOIA, panelists said, is how long it takes. And one hearing witness said the FOIA backlog might be caused by companies requesting data through FOIA that the government should be proactively disclosing.

Margaret Kwoka, assistant professor at Sturm College of Law at University of Denver, said other requesters (like the media or citizens) may be crowded out by commercial requestors that request the same categories of routine information.

“The government could decide to affirmatively publish those whole categories,” Kwoka said to FedScoop. “And pre-empt the need for one-by-one requesting, where kind of private entities are essentially doing the work the government should be doing, which is to categorize you know all of the records in a particular area and make a database of them.”

Her research, published this year, indicates that commercial requesters make up the majority of requests at four out of six entities whose requesters she reviewed, according to her testimony. The agencies included in her review of requesters were Securities and Exchange Commission, Food and Drug Administration, the Environmental Protection Agency, the Defense Logistics Agency, the Federal Trade Commission, and the National Institutes of Health

Several companies are actually making a profit off requesting information and then reselling it, like FOI Services Inc., which was the single highest-volume requestor of FDA information, according to Kwoka’s research.

Sen. Patrick Leahy, D-Vt., asked witnesses how agencies could better tackle the FOIA request workload brought on by commercial requesters. The way to increase efficiency, Kwoka said, could be agencies proactively releasing that information.

“I think we’re going to be facing that question more and more as we go ahead,” Leahy said. “We want FOIA to work. We also don’t want to be overwhelmed.”

Legislating proactive disclosure isn’t easy, Kwoka told FedScoop after the hearing, but she said there are several ways Congress could address this problem, including requiring agencies to publish FOIA logs and conducting an annual analysis to see whether frequently requested categories of records could be made available without using FOIA.

Other organizations have pushed for proactive disclosure, like the Sunlight Foundation, as mentioned in one of its recent blog posts.

“I think there was a lot of agreement both from the members of the committee and also from the panelists about the need to think about how to legislate affirmative disclosure requirements going forward,” Kwoka told FedScoop.

Panelists also noted that government needs to continue to address the technology that stands up FOIA operations — an issue that was also touched on in the FOIA Improvement Act. The act, signed in to law in June, calls for a centralized FOIA request website that can track requests. Right now, only some agencies use a website called FOIA Online.

“FOIA suffers from insufficient investment in technology,” said Rick Blum, director of the Sunshine in Government Initiative, in his opening testimony.

Blum said in the hearing that the committee could provide oversight as government tries to implement this part of the law.

[Read more: Obama signs FOIA Improvement Act into law and FOIA bill heads to Obama’s desk]

Government should also develop digital systems to publish documents automatically, which would improve proactive disclosure, said David Cuillier — director of the University of Arizona School of Journalism, testifying on behalf of the Society of Professional Journalists Freedom of Information Committee — in his prepared statement.

In June, the administration announced the Department of Justice will work with the Office of Management and Budget and the Environmental Protection Agency to launch in 2017 “a consolidated FOIA request portal,” which would be inspired by the service FOIA Online provides.

The portal will first focus on establishing a centralized place to submit requests, and then other features will be added, according to the White House fact sheet.

Kwoka told FedScoop that “technology has to be a critical component to improving the way the existing FOIA structure works, and also to any affirmative disclosure regime.”

She added that “the records are only as good as the technology that supports them.”