A week after the 49th birthday of one of the most important open government laws in United States history, the federal government has quietly announced it will roll out a series of pilot programs that will explore a "release to one, release to all" policy for responding to Freedom of Information Act requests.
The new programs will be tested out over the next six months within offices at the Environmental Protection Agency, the Office of the Director of National Intelligence, the Department of Defense, Department of Homeland Security, the Millennium Challenge Corporation, The National Archives and Records Administration, and the Justice Department. The Justice Department's Office of Information Policy (OIP) is leading the initiative.
"The results of this six-month pilot program will be made available to the public, and we intend to be transparent about the pilots and their implementation by participating agencies," wrote the Justice Department, in a statement posted on justice.gov. "We also invite the public’s feedback as we explore this proposed policy shift, and welcome innovative ideas and suggestions for overcoming the implementation challenges. Comments should be sent to OIP at ReleaseToAll@usdoj.gov ."
As part of its national action plan for the Open Government Partnership, the United States has committed to modernizing the Freedom of Information Act, including a "consolidated online FOIA service" that would enable the public to submit a request to any agency.
But to date, that feature has not been delivered, and the "most transparent administration in history" hasn't followed through on its early promise.
Despite a commitment by President Barack Obama and former U.S. Attorney General Eric Holder to administer the FOIA with "a clear presumption: [i]n the face of doubt, openness prevails," the United States in 2014 set a new record for censoring and denying FOIA requests. The majority of federal agencies do not post records in online FOIA reading rooms, according to the National Security Archive, setting an abysmal 40 percent E-FOIA compliance rate.
In the face of these issues, the 113th Congress was poised to enact historic FOIA reforms, only to see the bills blocked and then die while the press looked the other way. Lawmakers are once again trying to pass FOIA reform, but the effort is likely to face stiff opposition from government regulators and banks.
In that context, the pilot programs look like good news. They should result in more information being released directly to the public online, but may prove controversial in some contexts. When businesses make FOIA requests, for instance, they're not obligated to publish what they receive. Members of the media do not always publish documents and data received through FOIA requests either, in part to gain a competitive advantage over other publications. "Release to one, release to all" would shift that dynamic.
The Huffington Post interviewed Melanie Pustay, the director of the Office of Information Policy at the Department of Justice, about the pilots and related issues with FOIA.
This interview has been lightly edited and condensed for clarity.
What are you doing here?
"Release to one, release to all" is an idea is that we've been working since 2009. We're doing a number of things to improve transparency and increase efficiencies. We focus on encouraging agencies to make records available proactively.
This pilot is making the FOIA maxim "release to one, release to all." We want to make this a literal reality, not just giving records to an individual requester but made available to public at large. We think it has tremendous potential to increase transparency and give public the more information.
The pilot definitely raises implementation challenges. Number one is the cost of doing this program. The last fiscal year had several hundred thousand requests, and any given request can be for thousands of records. There are costs associated, including costs of scanning and getting ready for posting. One big one is the time and equipment needed to code documents, so that they are accessible to everyone posted online.
Another big area is the effect of this policy on the staff time of FOIA professionals. How much time does posting and preparing docs take? Does it take time away from processing the next request in line?
Will this apply to all FOIA requests?
There is an important exception. When someone asks for their own records, we would not be turning around and publishing someone's individual record. We also want to explore, as agencies find other kinds of requests that likewise should be excluded.
Why is this different than the existing FOIA policy?
We at Justice have long encouraged agencies to post records when the statute applies. The FOIA statute requires agencies to publish records that are frequently requested. DOJ interprets that as a "rule of three." That has been the practice of the agencies for many years.
What the pilot is doing is taking that to the point of when, with one request, agencies would post the records. ... We think this is a strong step forward. At the same time, we realize there are challenges in cost and time to implement it.
What agencies will host the pilots?
The pilots will be in offices within six agencies for six months: DOJ, DHS, [the National Archives and Records Administration], [the Office of the Director of National Intelligence] and the Millennium Challenge Corporation. We feel very good that we have a nice mix of agencies, with a nice mix of the types of records. DHS is very different from DOD records, which are very different from NARA. The National Archive has older records. It's much harder to code for posting.
With all of those things, these types of records, process will dictate how much time and efforts. We need to track and get a sense of how much cost is involved, and does it have a cost on staff time. We know that a "born-digital" record is light years ahead of a record that's on paper. At the Department of Defense or Department of Justice, we have records that date back to the 1960s.
The pilot is our way to gather information so that we are prepared to move forward. If we find results that help us learn how to tackle challenges, or the challenges seem more daunting, or agencies do find ways to overcome challenges, we feel like having all that information, having done an actual study will help.
What metrics will you use?
We have multiple metrics to gauge FOIA compliance across the agencies. Look at the annual FOIA report. Those are required metrics that agencies are required to submit, including exemptions used and oldest request.
We created a chief FOIA officer report, separate and apart from those numbers, in which we ask questions about proactive disclosure and ask about processes.
What the pilot is doing is something that's not a requirement. It's a proactive initiative on our part, as a way of moving forward and increasing transparency. We will see what it's like to implement such a policy, learn from that and see how we can make it more broadly applicable.
Have you ever collected these metrics before?
We have not collected this specific data on the costs and challenges of posting material. We think it's really critical. Whenever we encourage agencies to make proactive disclosures, agencies report on that every year. It's a smart way to go forward as a pilot: test and measure.
How is this different from current practices?
We already have agencies focused on deciding themselves what are the requests that are frequently requested. Our long-standing policy is that anything that's frequently requested should be released.
What our pilot is doing is something different. We're identifying another category of records that the public is interested in. What we've asked chief FOIA officers to do is to identify processes to find those documents. Look at the chief FOIA officer reports for 2015. This pilot is designed to take those frequently requested files and post them.
If data is the subject of a FOIA, why not just post it on Data.gov?
That's already happening. What we're looking at is to have records more freely available.
This is why we're working with not just 18F but GSA at Data.gov and [U.S.] Digital Services. We want FOIA.gov to keep adding features for things FOIA-related. We literally just had a meeting a couple days ago with people at 18F. We talked with them about government-wide library.
What the status of open.foia.gov?
We continue to work not only with GSA, but have started an engagement with the digital services team that is just getting set up at DOJ. We are very optimistic. They're just coming on board. There's only a few. We are literally in the hiring process.
We'll see exactly what happens. There's a multi-pronged approach of finding people that can help us.
Is anyone working on the universal FOIA request feature?
We at OIP are actively working with getting people to help us get to the next level. OIP is working on it. We have actually a lot of ideas for using tech to help FOIA beyond request-making capability.
We want better search capability for records that are posted. We have a vision for having requesters to have a guided request. Just enter terms and maybe these agencies would have your records.
There is work being done on open.foia.gov, within the digital team and 18F. We're not going to not fulfill the commitment.