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Three simple yet potentially revolutionary ideas for FOIA reform

Mar 14, 2022 by AFPF

This article was authored by Ginger Quintero-McCall, legal director for Demand Progress, for Americans for Prosperity Foundation’s Sunshine Week 2022 essay series on reforming FOIA.

I am writing this from the standpoint of having spent several years serving as a Freedom of Information Act attorney in the federal government, and also having worked closely with government FOIA officials as a member of the FOIA Federal Advisory Committee and on the American Society of Access Professionals Board. Based on my experiences, I believe a few simple changes could have great positive effects on FOIA processing times and overall rates of disclosure.

First, many agency FOIA offices continue to be hindered by a lack of resources, inadequate staffing, and suboptimal technology. One of the most effective reforms for FOIA isn’t revolutionary at all — it is simply a matter of adequate investment in these offices.

In particular, most offices rely on obsolete or clunky technology, not the kinds of e-discovery tools that other agency departments have access to in litigation. Moreover, most agencies do not have centralized cloud storage for emails and files, so many documents are lost as employees cycle out of the agency. Instead of being able to access and search documents directly, FOIA officers must rely on agency officials to do FOIA-related searches of their own files, which often creates weeks or months of delays.

Adequate investment in cloud storage technologies, record-keeping tools and policies, and better search tools would give FOIA offices a better chance of meeting deadlines and performing more comprehensive and efficient searches.

Allowing FOIA officers to directly access files, instead of forcing them to rely on agency officials to search their own files, would also ensure that other agency officials are not given the opportunity to hide their own wrongdoing by deleting files or failing to conduct an adequate search. While most agency officials are well-meaning, I’ve seen firsthand how agency leadership often uses its own power and authority to shield itself from scrutiny. Any tools we can give FOIA officers to push back against this would be very helpful.

The public interest balancing test, which has been suggested by many FOIA advocates and is potentially the subject of legislation in Congress, is another such tool. The public interest balancing test is the natural successor to the foreseeable harm test, which was introduced in prior FOIA reform legislation. This test would require agencies to weigh the public benefits of disclosure vs. the interests in withholding. This, again, is not a revolutionary idea — such a test already exists for FOIA’s privacy exemptions, that is, Exemptions 6 and 7(c). But, like the foreseeable harm test, a public interest balancing test would give FOIA officers some ability to push back against agency leadership’s assertions of secrecy.

I saw this in operation in my own prior work — when agency leadership wanted to withhold documents, the FOIA attorneys were able to push back against that by requiring leadership to assert a foreseeable harm. When they couldn’t, we were able to release more documents. The public interest balancing test would give FOIA officers and attorneys another tool to encourage disclosure of government documents.

My final recommendation is better communication on both the requester and FOIA officer side. This is something I have long advocated in training sessions with both the government and the public.

So many of the failures of FOIA are failures of communication. On the requester side, there needs to be some sense of social responsibility. “All records related to” and “all communications related to” requests are almost always unwarranted and should be narrowed if possible.

But crafting a narrow request often requires better communication on the agency side. FOIA officers are far better situated to have a sense of what documents the agency actually has and to make meaningful suggestions for narrowing. Yet many agencies do not post any public contact information for their FOIA liaisons, whose entire job is to interface with the public! If agencies don’t make this information readily available, how can they expect the public to submit well-crafted and narrow requests?

Moreover, few agencies engage in good, proactive customer service. Instead of sending a letter or email simply stating “your request is overbroad and will be closed” (which is, by the way, not a legal reason for closing a request!), it is far better to reach out to the requester on the phone and have an actual conversation about narrowing. And if a request is broad and is going to take additional processing time, that’s another great opportunity for proactive conversations — preferably by phone — about the circumstances requiring additional time and potential narrowing options that might lessen that timetable. Too often requesters are unnecessarily frustrated by obstructive agency bureaucratic practices — letters with determinations and no actual contact information or instructions for how to proceed, questionably legal administrative closures of requests, and the general sense that the submission of a FOIA request is akin to dropping a letter into a blackhole.

Conversations about how to craft a good request and how to narrow a broad request are in both the agency and the requester’s interest. When I started working at FEMA, the agency had gone a full year without facing a FOIA lawsuit, in large part because of a commitment to proactive communication and excellent customer service. In this spirit, I recommend some basic customer service and communication training for all FOIA officers and attorneys. It would save time in processing requests and save agencies money in lawsuits.

None of these proposals are particularly revolutionary in the sense that they are untested or extreme. But they would be revolutionary insomuch as they could create real, meaningful reductions in backlogs and processing time and could result in greater disclosure and openness.

Improving FOIA could be done with a few simple steps: adequately invest in FOIA offices; give FOIA officers tools to push back against agency secrecy; and encourage better communication on both the requester and the FOIA officer side.

Discover more thought-provoking ideas for reforming FOIA.

Ginger Quintero-McCall is the Legal Director for Demand Progress, where she works on a variety of corporate and government accountability issues. Ms. Quintero-McCall has previously worked on information law and transparency both inside and outside of government. She has previously served as Deputy Associate Chief Counsel for Information Law at the Federal Emergency Management Agency and Attorney Advisor on Information Law issues at the Department of Labor. Ms. McCall was also Oregon’s first Public Records Advocate. She also served as the Deputy Director (and Director of the Open Government Project) at the Electronic Privacy Information Center and as Federal Policy Manager at the Sunlight Foundation. Ms. McCall has twice served on the Federal Freedom of Information Act Advisory Committee, has been published in the New York Times and the Oregonian, and has taught a course on the Law of Open Government at Georgetown Law Center. Ms. McCall graduated magna cum laude from the University of Pittsburgh and received her law degree from Cornell Law School.