The FOIA Fees Subcommittee identified an urgent need to update the fee categories of requesters, taking into account technological advances and new means for sharing documents that alter the administrative burden and therefore the cost of fulfilling FOIA requests. The subcommittee recommends that the committee request Ferreiro to ask the OMB to revise its 1987 FOIA guidelines as soon as possible. The committee considered an alternative—having the archivist propose congressional legislation “to amend the fee provisions of the FOIA by revising the various fee standards, thereby enabling agencies [to] standardize fee determinations”—but that option was likely to take too long to effect and enact during the current legislative session. Another advantage of taking the rulemaking route is that it allows all parties affected to weigh in with comments: Requesters, those charged with processing FOIA requests, and the general public.
Oversight and Accountability Subcommittee Report
The subcommittee co-chairs pointed out that the results of the poll of FOIA Public Liaisons (FPLs) that was designed to determine opportunities for improvement are now available. The subcommittee is reviewing reports and drafting a white paper for the next meeting on April 19, 2016.
The committee discussed the best way to solicit comments on the public’s experience(s) with FPLs and get suggestions on improvement areas, including availability, assistance, timeliness, and effectiveness. A formal survey requires OMB approval, but asking for general feedback from the public might not need approvals that would delay it from participating. More proactive promotion of participation, including invitations to come to future committee meetings, is needed. (For the April 19 meeting, OGIS director James Holzer, chair of the committee, has invited Margaret Kwoka of the University of Denver’s Sturm College of Law to discuss her paper, “FOIA, Inc.”)
Proactive Disclosures Subcommittee Report
The committee recognizes the perception that a greater number of FOIA requests will be made as a result of proposed changes from the meeting. For example, if more documents are posted proactively, requiring digitization and review for privacy concerns (including redactions), would this divert people from servicing FOIA requests, thus increasing the time-to-post? What reallocation of personnel might be advisable? How might vendors become partners in creating solutions that facilitate one-click approaches to creating posts that are accessible to people with disabilities (i.e., that are Section 508-compliant)?
A 6-month pilot program called Release to One, Release to All launched in July 2015. Managed by the Department of Justice’s (DOJ) Office of Information Policy (OIP) and involving seven agencies, the pilot was “designed to test the feasibility of posting online FOIA responses so that they are available not just to the individual requester, but to the general public as well.” It tracked “the number of website visits to get better metrics on whether the public, including FOIA requesters, actually looks at proactively posted records. The data could allow agencies to do cost-benefit analyses to determine what resources to put into posting records. …” Results of the pilot should be available by April 19.
The findings of the pilot project and a poll of FOIA professionals will provide Ferreiro with some data to make an informed decision on the approach for updating FOIA. At the committee’s October 2015 meeting, Fees Subcommittee co-chair Nate Jones reported the results of a poll sent to federal FOIA processors. According to the poll’s 407 respondents, 20% of all FOIA requesters are charged fees. Results of an independent, unofficial survey of nongovernment FOIA stakeholders conducted by the National Security Archive and POGO (Project on Government Oversight) might provide additional data to inform Ferreiro’s decision.
Getting input from the public is essential. Holzer explained, “We look forward to having a better understanding of the real costs and benefits of adopting a ‘Release to one, Release to all’ policy, including the effect on staff time required to process requests once OIP releases its results. In anticipation of OIP’s report, the Federal FOIA Advisory Committee and OGIS will continue discussing with our stakeholders on how to improve the FOIA process and their thoughts on this new pilot.”
Holzer “encourages you to visit the Advisory Committee’s webpage on the OGIS website to learn how to share your thoughts with the Committee.” The public is also encouraged to celebrate Sunshine Week with OGIS on Monday, March 14, 2016, at the National Archives. Sunshine Week (March 13–19) is also when OGIS releases its FY2015 annual report. Undoubtedly, celebrations commemorating 50 years of FOIA later this year will be announced on the OGIS website in the coming months; members of the committee indicated the likelihood that congressional committees may take advantage of the anniversary to hold hearings too.
Moving FOIA Into the 21st Century
The move toward greater transparency and the use of technology to expedite requests for documents have resulted in many process improvements, such as FOIAonline. This portal “provides a secure website to receive and process requests, post responses, generate metrics, manage records electronically and create management reports. Requesters can use FOIAonline to submit FOIA requests, track their progress, communicate with the processing agency, search other requests, access previously released responsive documents and file appeals with participating agencies.”
State and local governments also have made advances in allowing individuals to submit FOIA requests, check their status, and download the response using an online portal. For example:
- County officials in St. Clair, Ill., say, “The system will reduce data entry time, cut FOIA processing time, reduce delays and backlogs, and increase efficiency.”
- Beginning this year, all publicly funded state agencies and county and municipal governments, including governing boards and commissions, school boards, and departments, in West Virginia are required to contribute the following information to West Virginia’s FOIA database: Name of each FOIA requester, date the FOIA request was received, subject of the request, whether the request was granted or denied (and reason for the denial), date of final completion of the request, and charges for processing the request. The public will be able to access this information online for a period of 5 years.
According to NextRequest, a company that helps make documents publicly available, “The process of releasing documents from governments to the public can be frustrating and time consuming for all parties.” NextRequest makes it easier to coordinate “between multiple staff members across departments to quickly fulfill requests.” Its status tracking feature “makes sure requests are fulfilled on time.” Additionally, “Self service features allow people to search previous requests online and find what they need without asking. Smart alerts route people to the correct agency before they submit a request.” The analytics tool makes it easy to “[m]easure all aspects of your public records request process.”