FOIA adventures

[dan at geer.org]

Federation of American Scientists current news brief, in part:

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HOUSE POISED TO PASS FOIA AMENDMENTS

The House of Representatives is expected to approve a new package
of amendments to the Freedom of Information Act this week, in a
bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it "would strengthen the Freedom of
Information Act (FOIA) to increase transparency and accountability
in government, and improve access to government records for citizens.
It amends FOIA to provide for more disclosure of records, through
both proactive disclosure and limitations on the use of exemptions.
[It] also encourages enhanced agency compliance with statutory
requirements and improves the FOIA process for both agencies and
requesters."

The bill would codify a presumption of openness, limit the application
of the exemption for deliberative records, facilitate electronic
submission of FOIA requests, strengthen the Office of Government
Information Services (the FOIA ombudsman), mandate Inspector General
reviews of FOIA processing, and several other steps. Detailed
justification for the bill is provided in a January 7 report from
the House Committee on Oversight and Government Reform.

	http://www.fas.org/sgp/congress/2016/foia-rept.pdf

The bill was subsequently modified by the House Intelligence Committee
to affirm that its provisions would not require the disclosure of
properly classified information or of information that "would
adversely affect intelligence sources and methods" that are protected.
The term "adversely affect" is not defined but is clearly intended
to limit disclosure.

	http://www.fas.org/sgp/congress/2016/hr653.pdf

Truth be told, the Freedom of Information Act is a strange law that
seems engineered to create an unresolvable tension if not a complete
stalemate.  The FOIA empowers individual members of the public
(including me and you) to impose a legally binding obligation on a
government agency. But while there are no limits on the number or
type of requests that a requester may submit at no cost, agencies
are nominally supposed to accommodate the demand within a fixed
period and with fixed resources. And though it only takes minutes
to submit a request, the time required by an agency to fulfill even
a simple request is much longer. A sophisticated systems analysis
is not needed to anticipate the growth of the backlogs that have
in fact developed.

In a further conundrum, those agencies that are more responsive to
the FOIA process thereby tend to generate more demand. There is
little point in submitting a FOIA request to the Defense Intelligence
Agency, to pick one example, because they won't produce a substantive
response in this decade. But other agencies that do respond faithfully
are rewarded-- with more requests.

The best way to untangle and realign these conflicting imperatives
is not clear. More proactive disclosure of information might help,
or it might simply shift the burden to more specialized and challenging
requests. But just encouraging and making it easier to file FOIA
requests is probably not the solution.