Legal & Policy Challenges

Don't Even Begin to Think About About Expanding FOIA Without . . .

• Thoroughly understanding the real world, end-to-end mechanics and costs of satisfying a FOIA request.

• Thoroughly understanding the tax that vigorous FOIA compliance would put on program employees and other non-disclosure personnel

• Reshaping FOIA operations in most agencies in light of that understanding

• Increasing staffing (and not just disclosure specialists) or changing the sunshine laws to address what cannot be resolved by better staffing and BPR

• NOT RUSHING your consideration of the above, taking testimony of the people who never give testimony, surveying the Federal community, and taking a business process view of the sunshine laws from the perspective of all stakeholders (not just FOIA offices, requesters, and their attorneys)

 

A problem statement follows:

 

In reality, FOIA requests are processed not by FOIA officers or records managers, but, rather, by the busy and dwindling ranks of program personnel and other Federal employees with no particular expertise or interest in disclosure matters. These employees are persistently asked to put aside pressing program matters to conduct time-consuming records searches, often to satisfy broad and ill-defined requests of an equally busy coterie of public interest groups masquerading as journalists. It’s like running a business in a constant state of litigation, where the discovery period never ends, and where you are always the defendant holding all relevant documents. One need not have a problem with the philosophy behind the FOIA to concede that, if we are going to have it, Congress must consider the actual mechanics and costs of its satisfaction. Recent legislation, such as the Open Government Act of 2007, showed no sign that such consideration occurred.

 

The issues and documents of most interest to FOIA requesters often concern policy or program activities involving senior staff or derive from the efforts of groups of Federal employees and contractor employees. Let me illustrate. Imagine being a GS-15 program analyst and having worked on a large scale project over a two-year period. The project has interagency dimensions and involves weekly interagency meetings, recommendations, drafts and redrafts, several e-mails a week, and scattered notes. Imagine that your life is filled with such projects and that you already don’t have enough time to complete the assignments dumped in your in-box. As well, the prospect of significantly better staffing to alleviate this crush is, by now, laughable for anybody who has watched the slow bleeding of the Federal workforce since 1995. Now imagine a FOIA request, coming under cover of a form from your FOIA officer, asking for all records pertaining to some issue that runs through the project like a kite in heavy crosswinds. Even with a well run records management system and the best search tools (neither of which you probably have), a competent search could take days. Instead, you have to make a choice: do a breezy and inept search that takes an hour or two and saves some of your work day for what your boss needs to get done, delay until you can scrounge for more time, read the request hyper-technically, or lie. Negotiation with the requester might help, but that process will cost more time and still likely leave you holding a big bag.

 

Let’s assume that you find the time to conduct a search that passes the blue face test, and it produces half a ream of paper. You would then have the joy of following the next line in the FOIA processing instruction, which is to identify (line by line) the exemptions that could or should be claimed pertaining to the material. The exemptions are tricky, and the number of off-Act statutory exemptions (and disclosure prohibitions) are growing. Add even more hours of lost time. Oh, incidentally, adequate office clerical support has also collapsed, but we couldn’t trust them to suggest exemption claims (or even collect documents requiring interpretation) anyways.

In a nutshell, that’s what is happening on the ground level.

 

There is nothing in recent legislation designed to adequately deal with those realities. There are, however, personnel actions suggested for Federal employees who must choose between meeting statutory program dates and statutory FOIA dates. The FOIA boosters also tend to overlook the fact that the FOIA requesters have become more invasive and tactical over the years -- at the same time Government information has grown like a mushroom cloud rising from new technologies that spawn a chain reaction of new records and new records series. This proliferation of “records” is now demanded free of charge by anybody with a copy of Dreamweaver or MS Expressions, as a “journalist.” This notion of journalist would hardly have been respected by the Congress that created the FOIA or even the Congresses that enacted the later significant amendments to the Act. Whatever fee they are charging to the few remaining requesters who are not journalists, it can’t begin to cover the true costs of the more highly paid Government employees spending hours of time hunting down documents and doing line-by-lines to satisfy the requesters (never mind lost opportunity costs).

 

There aren’t enough Federal employees to do the program work that is being required anymore. The administrative offices of Federal agencies (including FOIA, records management offices, and information resources management offices) have been devastated by streamlining and rightsizing initiatives. Moreover, what remains of program offices are being eaten alive by what those administrative offices used to do (or at least make easier for the program offices). That’s just a fact. All the public policy grandstanding in the world won’t change it.

 

Let’s have a real world dialogue in this Nation about the costs of Government, what we want to spend our money on, what we can and can’t afford, and what is feasible or not. Transparency sounds great. If it is conceived in the same fashion as recent FOIA-related legislation, however, it will crash and burn in practice. It will crash and burn for want of Federal time and personnel and due to the ascendancy of a growing and pampered public interest segment demanding a dwindling piece of the public sector, as if nothing has changed, and as if the only documents retained lay in well-stored paper file folders, organized by subjects of the requester’s peculiar choosing.

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Idea No. 61