POLITICS

New Federal Watchdog Has Dubious Track Record

James Holzer's public record on FOIA is cause for concern.

The U.S. has a new ombudsman for the Freedom of Information Act. This week, Archivist of the United States David Ferriero announced that James Holzer would be the new director of the Office of Government Information Services at the U.S. National Archives, beginning on August 9. Among other things, he'll be tasked with resolving disputes between people who make FOIA requests and the federal government.

"Dr. Holzer’s experience administering FOIA and his demonstrated commitment to transparency will benefit OGIS, the National Archives, and the American public," said Ferriero. 

Holzer is currently the senior director of FOIA operations at the Department of Homeland Security, which receives the most FOIA requests in the federal government, with approximately 200,000 filed in 2014. The agency rolled out the federal government's first mobile FOIA app earlier this summer, to negative reviews

DHS's record on FOIA compliance and transparency over the past few years is not distinguished, no matter how many times government officials say it is. DHS had the highest number of partial responses to FOIA requests in government.

Part of the issue here is technological. A November 2014 report from the General Accountability Office found the DHS duplicates efforts when processing FOIA requests. Holzer acknowledged the issue in a memorandum that said different departments of the DHS are using FOIA software that fails to meet federal standards. If the U.S. Digital Service can further digitize the immigration process, costs may decrease and responsiveness may increase, the memo said.

Some of the FOIA backlog is also related to limits on staffing and funding for training across the federal government. According to the Department of Justice's annual report, there were 3,838 full-time FOIA staff members in 2014. In 2011, there were 4,396. 

As I told Government Matters TV last weekend, the Obama administration has taken a number of steps to improve the process, from developing a consolidated FOIA request software to launching "release to one, release to all" pilots at federal agencies -- in which parts of seven federal agencies will experiment with publishing documents online for the general public whenever they release them to an individual requester.

While some investigative journalists have raised concerns about the pilots, the proactive disclosure of frequently requested records and data should decrease the backlog and lower costs. However, this won't address the overuse of exemptions and redactions.

For that, Congress needs to enact FOIA reform, including measures to strengthen the hand of the FOIA ombudsman. As of today, however, neither the U.S. House or Senate has brought FOIA reform to the floor for a vote.

It's hard to find a positive interpretation of the fact that a FOIA officer from DHS has been appointed ombudsman. FOIA requesters will need a strong advocate to arbitrate disputes and push for their requests to be addressed. A candidate from the nonprofit, academic or media worlds would be much more likely to do that than a DHS staffer.

And as Toby McIntosh pointed out at freedominfo.org, Holzer's public record on this count is cause for concern on multiple levels. Holzer wrote a 2014 letter that MuckRock, which provides a FOIA request and hosting service, was "not a member of the news media," though it featured journalists like Michael Morisy and Shawn Musgrave publishing journalism on matters of public interest, like domestic drone programs.  

If you evaluate the original reporting that MuckRock has produced, it's hard to see how DHS justified this conclusion. In December 2014, for instance, MuckRock collaborated with The Marshall Project to report on the Pentagon's agency-by-agency data for its 1033 program, which transferred military equipment to domestic law enforcement agencies.

MuckRock is just one of many "born digital" news organizations that produce software or features that go beyond static print articles. I hope that, in his new role, Holzer re-evaluates his decision at DHS and advocates for a much broader interpretation of what media is, with the accompanying result of fee exemptions for digital journalists.

"James is a great advocate and a strong choice for OGIS," tweeted Corinna Zarek, the senior advisor for open government at the White House Office for Science and Technology Policy. "I look forward to working with him in that role."

"In my experience, Holzer has helped force the release of hundreds of thousands of pages from DHS to me, even when fulfillment of a properly filed request resulted in publication of unflattering information about the agency," said open government advocate Lisette Garcia, founder of the FOIA Resource Center, in email. "Holzer is a true public servant -- putting principle over politics every step of the way -- in his dealings with me."

DHS and Holzer did not respond to a request for an interview.

This story has been updated with a statement from Lisette Garcia and a tweet from Corinna Zarek.