A FOIA No-Brainer

Last week, the Obama administration announced a new approach for FOIA: responses to requests will be published online immediately. This six month pilot program washes away agency practices of publishing FOIA responses online only after three requests for the same documents. While a seemingly trivial distinction, it has the real world effect of forcing agencies to publish responses online immediately, bypassing agency worst-practices of avoiding publication entirely by refusing to count requests.

Seven agencies will participate in the pilot: Environmental Protection Agency, Office of the Director of National Intelligence, and the Millennium Challenge Corporation, and components of the Department of Defense, Department of Homeland Security, Department of Justice, and National Archives and Records Administration.

Throughout the process, the Justice Department’s Office of Information Policy requests feedback from the public at releasetoall@usdoj.gov. This new disclosure approach is sensible, and complements recommendations I have made elsewhere on proactive disclosure of information of interest to the public. It also fits nicely with FOIA legislation pending in the House and Senate.

I must take issue with some of our journalist friends who have complained about the pilot program. They’d prefer a head start to receive and analyze documents and not get access at the same time as the hoi polloi. They forget the purpose of the FOIA, as described by the Supreme Court in 1973, is for “people to know what their government is up to.” (emphasis added)

Representatives of the news media already receive a special benefit under the law: fee waivers for record searches and reduced duplication costs. But the law does not provide for delayed public release. In any event, a “head start” is unworkable in practice — what if two or more requests for the same information is pending ? must an agency to keep special track of journalists? — and many others could make the case for special access.

{ Liked this? You may also like How Agencies Can Improve Proactive Disclosure and A Checklist for Drafters of Transparency Legislation }

— Written by Daniel Schuman