Issa’s request for agency FOIA records draws mixed reviews

The House oversight panel's recent wide-net demand for Freedom of Information Act records either could elevate agency responsiveness to public requests for documents, or overburden already underresourced FOIA offices, according to advocates for greater government transparency.

Rep. Darrell Issa, R-Calif., chairman of the Oversight and Government Reform Committee, on Jan. 25 sent a letter to 180 federal agencies, and copies to top National Archives officials, demanding a list of records "to enable the committee to understand the impact of recent changes to FOIA procedures and to evaluate agencies' compliance with FOIA."

Playing off of President Obama's open-government initiative that was one of his first acts in office, the letter specifically requests FOIA logs going back five years, the name of each requester, the date of each request, a description of documents sought, tracking numbers, the date each request was closed if it is no longer outstanding, and whether any accompanying records were made public.

The letter demands every agency provide a list of FOIA requests that are older than 45 days prior to the date of Issa's letter. It seeks copies of all communications between an agency and a requester for such older requests and asks agencies to identify the resulting judicial actions, including any court orders requiring them to pay litigation costs.

All responses, which include documents related to hundreds of thousands of FOIA requests, are due on Capitol Hill by 5:00 p.m. on Feb. 15.

Patrice McDermott, director of the coalition of transparency advocates called, said her group is "of two minds" on Issa's move. "It's the sort of information we're looking for, the backlogs, so we're interested in that as well," she said. "But the volume involved is a concern. It could be a real burden for FOIA officers currently underresourced." And with budget cuts coming, they will be "even further underresourced," she added. "It could make it difficult for the public to get their FOIA requests responded to in a timely way."

Danielle Brian, executive director of the Project on Government Oversight was more welcoming. "This has the potential to be a terrific investigation into the flawed execution of FOIA," she said. "It is a huge undertaking, though. I hope not so huge it overburdens both the FOIA offices and the committee. Requesters do not have any privacy protections. Law firms, reporters and others regularly conduct 'reverse FOIA's' to find out who is sending requests and what information they are getting. So Issa is not really breaking new ground in concept there, only in scope."

Thomas Blanton, director of the private nonprofit National Security Archive, said the optimistic view is "anytime Congress asks agencies for information, it will elevate FOIA performance in that agency heads will see that Congress is watching. Then the agency heads might give FOIA offices more attention and resources."

The pessimistic view, Blanton added, is that Issa's letter gives agencies less time to respond than does FOIA law, only 20 calendar days as opposed to 20 working days. Whether compliance would be a burden is not clear -- "the information ought to be at the fingertips of the agency shops," he said. Those that have not automated their systems might be motivated to ask for more resources, he said.

If Issa and his staff have the capacity to process the data, then they could spot some trends and hold hearings that would "put heat on agencies that have lingering requests," Blanton said.

He recalls an episode in the George H.W. Bush administration when Secretary of State James A. Baker III, at a Senate Foreign Relations Committee hearing, was informed by Sen. Patrick Leahy, D-Vt., who then chaired the Judiciary subcommittee handling FOIA issues, that the State Department had one of the worst records of FOIA compliance. Baker said he had not been aware, Blanton said, so Baker "went back and hired some retired ambassadors to process the requests and made a dent in them."

The point, Blanton said, is "Congress can get people's attention in ways requesters often cannot."

A spokesman for Issa said the request involved mostly material that already exists, so the fear of overburdening agencies is not a concern. The National Archives and the Justice Department did not respond to requests for comment.

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