Does Massive Backlog Mean the Freedom of Information Act Is Failing?
Just over five years ago, in January 2009, President Obama issued a Memorandum on Transparency and Open Government that aimed to create “an unprecedented level of openness in Government.”
“My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use,” Obama wrote.
But by the end of 2011, more than two years later, the system that purports to create and maintain that very openness—the Freedom of Information Act—was still grappling with unprecedented levels of requests and a record-breaking backlog. According to the Department of Justice, federal agencies fielded 631,000 requests via FOIA in 2011 even as the system’s backlog grew from 70,000 to more than 83,000 in the same period.
“Normally, in government agencies, the parties responsible for responding to FOIA requests are not the same people that 'archive' the material,” says Bruce Provda, a veteran New York lawyer handling high-profile criminal and family law cases familiar with the FOIA system. “Often it’s a case of the left hand doesn’t know what the right hand is doing.”
More than laziness is behind the backlog, said Bruce Thompson, an attorney from North Carolina who has worked for both the government and the private sector. The massive number of requests and the safeguards that mandate uniform responses can create red tape. Under FOIA, requesters are entitled to a response in 20 days, but that's not always possible—some state laws call for speedier responses.
"If you don't respond immediately, there's this automatic accusation that you're dragging your feet because you don't want to turn over information," Thompson said. "But from the government side, there are any number of reasons that there needs to be a thorough review of documents to make sure you're not divulging something of attorney-client privilege. Someone might use FOIA as a way of going outside the discovery process, for instance.”
Efforts to undo the backlog have started to pay off, however. Last week marked the first deadline for the implementation of an Open Government Directive, which outlines specific benchmarks government agencies are required to meet. By April 1, government agencies were required to provide a preliminary, interim outline detailing what measures they had taken to implement longer-term transparency goals, which include improving access to data, encouraging “proactive disclosures,” and increasing whistleblower protection for employees.
The directive also encouraged agencies to develop a “presumption of openness” in their dealings with the public via FOIA requests. Todd Park, the Office of Management and Budget’s chief technology officer, wrote, “The Open Government Directive requires an assessment of your agency’s capacity to analyze, coordinate, and respond to FOIA requests in a timely manner. If your agency has a significant backlog, your Plan must detail how your agency will reduce its pending backlog of outstanding FOIA requests by at least ten percent each year.”
Significant problems remain. The National Security Archive, a Washington, D.C.–based organization that pushes for FOIA reform and publishes large troves of historical documentation, recently published a report showing that nearly half of all federal agencies have failed to update their internal regulations dealing with public access to information. The Federal Trade Commission, for example, has not updated its internal FOIA regulations since 1975.
Unsurprisingly, the National Security Agency is one of the worst offenders.
“The NSA, in many ways, is like a teenager. They’ll deny, deny, deny. If you press them hard enough, though, they will give you a B.S. story. You will know it’s a B.S. story, but at least it’s a semi-believable B.S. story,” Provda, the New York attorney, said. “Their history shows that they will continue to withold the truth and evidence until they are presented with something concrete, as in this case, Snowden’s revelations.”
Another reason for the FOIA backlog is simpler—bureaucratic and technological lethargy.
“The infrastructure for responding is weak,” says Zac Bookman, cofounder and CEO of OpenGov.com, which describes itself as “a software company that offers a web-based platform for state and local governments to easily access their budget data, visualize and analyze trends, and share the finances with citizens to build trust and engagement.”
“There’s still a lot of paper in a world that's gone completely digital. And the government has not added the ability to respond effectively or quickly. Staff members who have tons of work to do. It's 2014, and these places are filled with cabinets.”
Bookman and his colleagues have sold their software program to more than 80 city, municipal, and county governments in 15 states, and more are on the way. One of their first clients was the California city of Bell, which was rocked by scandal in 2010 when its entire city council was found to have been involved in cheating and fraud. Now Bookman’s company is signing up a new government client every two days.
“The vision is grand: We're going to blow this out nationwide and then also have the technology to compare their spending to other governments', and do comparative spending, so that the data will be at everyone's fingertips,” says Bookman.
This article was created in association with the social action campaign for The Unknown Known, produced by TakePart's parent company, Participant Media.
The Unknown Known, a portrait of Donald Rumsfeld directed by Academy Award winner Errol Morris, is in theaters now. You can take action to make sure our government is telling us the truth about the country's defense budget.