The Freedom of Information Act can be seen at once as a crucial tool, a major hassle and the law of the land. President Obama’s 2009 promise to run “the most transparent administration in history” is considered a joke by many in the so-called civil society groups—despite the efforts of agency FOIA specialists.
Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, is in her eighth year overseeing implementation of the half-century-old Freedom of Information Act, designed to ensure access to public information—or as some government transparency advocates put it, to “disinfect with sunlight.” She faces myriad obstacles.
The common bone of contention in FOIA squabbles is the deliberative process under Exemption 5. “An ever-present concern that needs to be reconciled with FOIA is whether disclosure of documents would make government officials feel they are operating in a fishbowl, inhibiting frank and candid discussions,” Pustay says, referring to the factors that go into determining whether information should be released.
The challenge FOIA officers face is ever more numbers of requests.
melanie ann pustay, office of information policy
The most active students of FOIA policy, the nonprofit transparency groups, issue “report cards” commonly faulting the Obama administration for what they see as over-withholding of national security documents, high fees for filing FOIA requests and delayed responses. The private National Security Archives earlier this year reported that of 165 agencies with chief FOIA officers, only 40 percent had followed the law requiring online posting of FOIA releases, and 33 agencies had not posted one release.
The number of FOIA requests from nonprofits, law firms, corporations and individuals seeking documents from federal agencies rose steadily from 514,541 in 2009 to 714,231 in 2014. The cost of fulfilling those requests is about $450 million a year. Obama directed agencies to reduce the backlog of FOIA requests by 10 percent per year. But the number of unanswered requests—159,741—is nearly double that of recent years.
Across government, staffs devoted to FOIA fulfillment are at their smallest size in six years, Pustay told the Senate Judiciary Committee in May. The roster shrank from to 4,213 in 2013 to 3,838 in 2014.
Budgets are tight, and while FOIA officials processed an impressive 647,142 requests in 2014, they would have completed 32,000 more, she testified, were it not for the three-week government shutdown.
Despite the effort, the administration’s promise of transparency has become a prime target in panel discussions during Sunshine Week each year in March.
“Obama has embraced transparency on a rhetorical level, and to some extent on a functional level in that there’s more data,” says Matt Rumsey, senior policy analyst for the Sunlight Foundation. “But the openness hasn’t always trickled down to FOIA. We’ve seen an uptick in the exemptions being overused that shouldn’t be.” He calls Exemption 5 one of the agency’s “don’t release it, if you don’t want to release it” exemptions.
Pustay said in an interview, however, the exemption is invoked in only 16 percent of rejections, adding that is “less than our critics contend.”
Rumsey agrees FOIA offices should be better funded, but he cautions that “more staff is not a panacea. It’s still hard for FOIA officers to get buy-in from other parts of the agencies,” he says. The Justice Department “has issued some good guidance we’d like to see more agencies look at and put into practice.” That includes proactively pushing a “presumption of openness” and encouraging staff to release “a whole section or type of document and have it ready and up online, and not have a big fight,” Rumsey says. “In the short term it might cause more staff work, but in the long term it should reduce the burden.”
It’s more complicated than that, says Pustay. “The challenge FOIA officers face is ever more numbers of requests, no matter what we do or make available,” she says.
Pustay is “continually mystified” by critics who blast Obama’s commitment to information sharing. “We have a focus on FOIA and transparency like never before, and the civil society organizations responded by becoming more active [with requests],” she says. “I encourage agencies to engage.”
The Office of Information Policy takes the critics’ “report cards” to heart, Pustay says. Every year the office also scores agencies on such metrics as average processing time and efforts to close their 10 oldest requests. The transparency groups “have input into our scorecard, and we have input into theirs,” she adds. Pustay personally meets with FOIA requesters, “something never done in the past,” she says.
FOIA professionals do not consider the law’s requirements a burden, according to Pustay, who says they are dedicated and really want to do a good job. The government for six years has maintained a document release rate of more than 90 percent, her office reports. Morale rose in 2012 when the Office of Personnel Management announced a new job classification for FOIA officers and Privacy Act enforcers called government information specialists.
“The career track really helps with recruiting and retention,” Pustay says. “These are important jobs dealing with applying the law and the courts.”
Staffs range from dozens of full-time employees at the high-volume agencies—such as the Homeland Security, Justice, Defense, Health and Human Services, and Veterans Affairs departments—to a few part-timers at the agencies that receive fewer FOIA requests. Those with “collateral duty,” or other responsibilities, are undergoing training in best practices, and surprisingly, many have no backlogs, Pustay says.
Transparency advocates suggest that the governmentwide push for open data should relieve some of the workload. “FOIA officers would love more requests for data—they’re easy, you can do it in a day,” Pustay says. “But data is not what many are asking for. They want all the emails from 10 different officials in five different offices. That’s what takes time.”
Her office of 41 employees has rolled out a number of sunshine initiatives—reports, documents posted proactively without requests and improved websites. “We try to make it clear what we’ve done and summarize the themes. It took several years’ work to improve communication with requester groups,” Pustay says, adding that she was struck by how many issues could be resolved through better communication. “It’s so fixable—it shouldn’t be difficult or contentious.”
In March, the team released a new set of FOIA e-learning training tools, including a video and infographic that details the FOIA basics on one page. For the first time, the office gave out awards during Sunshine Week this year. New policies announced in July allow agencies to reconfirm with FOIA filers that they are still interested in pending requests, and in a pilot program seven agencies are automatically posting documents from every completed request.
The governmentwide push for centralized, easy access got help from the General Services Administration and the National Archives and Records Administration, which created websites that complement FOIA.gov.
Whether average federal employees will take more time to embrace greater transparency is uncertain.
“The key question is: Why are we doing this? And if it’s so important, why is it basically an unfunded mandate?” says GSA alumnus Jon Desenberg, now policy director at the Performance Institute. “There is a good theory behind transparency, which is that more people viewing data means more creativity in solving problems. But the typical American does not appear to be dialing up Performance.gov after dinner to relax at night. Employees need to understand the purpose and theory behind their work, otherwise it often seems to be a compliance-driven exercise with very little value.”
The Office of Information Policy is gearing up to mark FOIA’s 50th anniversary in 2016. Pustay’s team is working on a new online program to help citizen requesters narrow down which agency they need to contact to obtain desired documents. “In general, our advice is to use technology to the fullest extent to help document searches,” she says. “FOIA professionals are eager for faster technology that has promise to help with searching and de-duplication.”
Technology, however, is unlikely to replace the need for people who analyze classified or law enforcement documents to determine disclosability, Pustay says. “The government has high hopes for technology to achieve greater efficiency,” she adds. But technology is also expensive.