Implement a formula that establishes a minimum percentage of the agencies’ Public Affairs Office (PAO) budgets to be spent on FOIA expenses. Without adequate resources devoted to FOIA, agency morale and the ability to fully adhere to the requirements of the law will not likely improve. GAO should be asked to analyze the current funding for FOIA and assess funding sufficiency based on agency size, FOIA personnel, number of requests, and number of pages requested per year. Then the Congressional Budget Office should be asked to generate a formula for appropriate funding of FOIA offices in agencies, which might include an optimum ratio between PAO and FOIA funding. This recommendation might result in the creation of specific line-item budgets for FOIA, rather than its incorporation in general agency funding. As FOIA studies are completed and offer a clearer picture of the problems and challenges being faced at each agency, the formula could be adjusted to specifically address each agency’s FOIA needs.
The President should instruct agency Chief Information Officers, working with the agency Transparency Officer, to build content management systems such that FOIA-able information can be identified and retrieved. Currently, responding to FOIA requests is labor intensive and expensive for most agencies because their IT systems were not designed to enable the retrieval of older information and records.
The president should instruct agency Chief Information Officers, and should task the CIO Council, to develop and publish for comment a strategic plan to rebuild government information dissemination capacity and move agencies into the Web 2.0 world. The government needs to rebuild technical capacity for information dissemination in the agencies (and government-wide), because in recent years, most technical work regarding dissemination has been outsourced, and there is not sufficient capacity among governmental personnel to even oversee the work of contractors, much less develop technical dissemination initiatives within the government. This assessment should include resource needs for building agency technical capacity.
OMB/the Office of Transparency should (re)issue guidance on information that must be on agency homepages and should require agency reports on compliance with the requirements of the E-Government Act, the E-FOIA amendments of 1996, and recommendations of the Dissemination/Transparency Working Group. Battles over website real estate often create disincentives to make information easily available. Decisions about what gets posted, and where, vary from agency to agency, and the criteria are at best unclear and generally not disclosed to the public. In recent years, for instance, despite the mandates of the E-Government Act and guidance from OMB that links to FOIA reading rooms be on the homepages of agency websites, these links have been removed from some websites because they are not heavily used or other agency concerns are given priority. Information disclosure links must be easily found and easily used.
The next administration should create incentives to convert government documents to no-fee, electronic, publicly available documents. Currently, private companies enter into non-competed agreements with agencies – often Memoranda of Understanding that are not public – and create subscription/charge-based access to public records that they have digitized at “no cost” to the government. There is little ability for alternative models, such as consortia of government entities, libraries, and others, to present themselves as options to maintain no-fee electronic public access in the face of such non-competed agreements.
The president should establish incentives for agencies to clear up their backlogs. One incentive would be establishing a technical assistance fund to provide additional support to agencies with significant backlog problems. Some agencies’ backlogs are the result of unique issues faced by the agency in responding to requests. Some agencies may handle requests with a greater emphasis on historical records, e-mail communications by officials, or records that require multiple reviews prior to disclosure. This fund would provide such agencies with an opportunity to receive assistance in addressing such challenges. The fund should be established at the Department of Justice or the Office of Government Information Services at the National Archives and Records Administration. The fund would also function as a check on agencies’ requests for additional time in responding to requests. In a FOIA lawsuit, an agency can seek an “Open America” stay from the court to grant the agency additional time in responding to a request because its existing backlog prevents that agency from responding until the requests received earlier are cleared.54 Typically, to obtain such a "stay," an agency must show that it is overburdened by requests and is exercising "due diligence" to reduce its backlog of pending requests. Requesting assistance from this fund would be seen a requisite for “due diligence” in trying to reduce backlogs. Therefore, agencies not requesting assistance would be allowed to receive such stays. Another incentive would be a commitment by OMB to allocate more funds to agencies that purchase electronic record and content management systems that meet standards for interoperability and include explicit provision for successfully responding to FOIA and E-discovery demands.
- From the 21st Century RTK Agenda