When does the public get public records?

Halfway through the federal government's pilot release to one, release to all FOIA program, where do things stand?
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55
Adam Marshall

Dep't of Justice Photo

Melanie Ann Pustay, director of the Office of Information Policy at the Department of Justice, is overseeing the pilot program.

In early July, the Reporters Committee reported that several federal agencies had launched a pilot “release to one, release to all” program for records processed under the Freedom of Information Act. Throughout the six-month pilot, seven agencies or components thereof are posting records online as they are processed in connection with individual FOIA requests. Three months in, questions remain about how it is working and what an ideal system might look like in the future.

Three months in

According to government officials interviewed by the Reporters Committee, the release policy has its origins in President Obama’s 2009 memorandum on transparency, which specifically called for agencies to use “modern technology to inform citizens about what is known and done by their Government.”

The pilot comes at a time when the President, nearing the end of his second term, is facing questions from the public and the news media as to whether his administration has lived up to its promise of openness.

Dr. James Holzer, Director of the Office of Government Information Services, says that the pilot program “shows that the Obama Administration is still serious about improving public access to government information.” Melanie Ann Pustay, Director of the Office of Information Policy at the Department of Justice, which is leading the pilot program, says that it’s part of a larger “grand vision” of proactively providing government information to the public.

Over the last three months the agencies participating in the pilot have taken a variety of approaches to posting processed records. A survey of these agencies shows they’ve had varying levels of success: some are able to leverage already-robust FOIA systems to post records immediately, while others have made only a few PDFs available on hard-to-find pages of their websites.

On one end of the spectrum is the Environmental Protection Agency, which uses FOIAonline to release records. The system, which preceded the pilot program, is widely regarded to be the most advanced online FOIA portal in the federal government. Users can browse records requested under FOIA, often with the FOIA request itself or a summary of the request.

In response to questions from the Reporters Committee, the EPA said that there is “no delay between the time records are released by EPA in response to a FOIA request and when they are available to the public through FOIAonline. If an email account has been provided with the request, once records are released to a FOIA requester, a notification goes out to the requester informing them of the availability of the records.”

The National Archives and Records Administration also uses FOIAonline to process its FOIA requests. To protect personal privacy, NARA says that it does not post “responses to requests in which individuals seek access to information about themselves,” a limitation that is common among other agencies.

EPA photo

The Environmental Protection Agency is participating in the "release to one, release to all" program.

Two components of the Department of Homeland Security are participating in the pilot — the Privacy Office and the Science & Technology Office. Records “released to all” are posted on each component’s website, though few have been made available so far. The Privacy Office’s page has 17 PDFs, and was last updated on August 25th. The Science & Technology Office’s page contains just three PDFs, and was last updated on September 4th. Neither includes the FOIA requests that prompted the release of the records.

One of the smaller agencies participating in the pilot, the Millennium Challenge Corporation, has an announcement on its website regarding the program but no electronic reading room or other page where documents appear. An MCC spokesperson was not available for comment before publication.

The Office of the Director of National Intelligence recently revamped its FOIA website to include a collection of documents. Based on the dates appearing there, three PDFs have been publically released since August. A spokesperson for ODNI was also not available for comment. FOIA requests do not appear to be published alongside the records.

According to the Department of Defense’s Open Government website, “several” components are part of the release-to-one, release-to-all program. A survey of DOD components identified by FreedomInfo.org as participating in the pilot does not make clear whether documents have actually been posted under the pilot. A DOD spokesperson said that records released under the pilot would be posted to the DOD FOIA reading room, but was unable to confirm whether any records had actually been released to date.

Finally, just one component of the Justice Department — the Office of Justice Programs — is participating in the pilot. It releases records through the online OJP FOIA Library and has posted eleven PDFs to date, but no requests.

Too much transparency?

When the pilot FOIA program was first announced, many journalists expressed concerns that it would negatively affect their ability to report by allowing others to swoop in on documents they fought for. “The government is now giving away your FOIA scoops”, one article read. Jason Leopold, a reporter with Vice News, told the Washington Post that the program would “absolutely hurt journalists’ ability to report” on documents obtained through FOIA. The title of that article, sensing the inevitable irony, asked if the new policy was “too much transparency for journalists?”

Such reactions clearly reflect an ambivalence from journalists who want transparency for the public’s benefit, but who also want to get the story.

Some of these reactions prompted other journalists to question whether the news media was setting up a double standard. “How are we as journalists, who are constantly arguing for greater transparency, going to turn around and say hang on, that’s too much openness for me?” says Matt Drange, a reporter for the Center for Investigative Reporting.

There’s no doubt that the announcement of the program took journalists by surprise. While OIP worked with the volunteer agencies before the program was announced, it seems that few others knew about it. Neither OGIS nor the federal FOIA Advisory Committee, a partnership of FOIA professionals in both government and the private sector, were involved in the pilot program before it was announced.

Despite its sudden introduction, three months later most journalists contacted by the Reporters Committee did not seem too concerned about the new policy. Some, like Brad Heath, an investigative reporter with USA Today, say that it while could theoretically affect some stories on the margins, overall he hasn’t seen it have a huge impact.

Even Leopold seems to have changed his mind since the pilot started: “I’ve learned a lot more as to how this works since the project was announced,” he says, and while he still has concerns, he doesn’t think the policy seriously inhibits his ability to report. One of Leopold’s FOIA requests to EPA, for example, was processed and posted for the public to see, but it just “sat out there and no one noticed it because it’s not like EPA is putting out a press release.”

Others agreed that many, if not most, FOIA requests enjoyed a measure of practical obscurity. “The vast majority of those EPA links are hidden in plain sight,” says Nate Jones, the Director of the Freedom of Information Act Project at the National Security Archive and a member of the FOIA Advisory Committee.

Others pointed out that FOIA request logs, which are routinely posted online, already contain the names of reporters and the subject of their requests. Anyone who really wants to see what another reporter is up to can simply FOIA another person’s FOIA request to ask for the same records.

Even if another reporter or member of the public finds a document that has been released, “the news value in it might not be obvious,” according to Heath. If another reporter does understand the significance of a document, Drange says that most of the time “one piece of information isn’t the whole story . . . even if [another person] got it right when I did, I don’t think they would have, in most cases, the context that they would need to tell the story the way I could.”

Nonetheless, other reporters remain skeptical of a widespread release-to-one, release-to-all policy, especially if there is no delay between the release to the initial requester and the public.

Andrew Becker, a reporter for the Center for Investigative Reporting and a member of the FOIA Advisory Committee, says there’s a real “ambivalence” about the program for him.

“It’s a competitive news world . . . you spend a lot of time and effort and money to get to a point . . . to say all right, now I know I need to get these records, request those records, and then that’s potentially what makes the story.”

“Then after all of that time and effort,” Becker says, to have another news outlet come in and write the story might make it seem all “for naught.”

Many reporters emphasized the important of a delay between the requester receiving the documents and their posting for the general public. It would be hard to deny that there is an economic self-interest to such sentiments, but reporters think it ultimately benefits the public as well.

Leopold says that when he’s working on a big investigative story, having exclusive time with a document is crucial. Not only does it give him time to properly analyze it, but he might also use it to identify and contact sources that can provide additional context. That kind of work is key for providing the public with well-crafted, informative stories, which a simple document dump can’t provide.

Journalists were not always aligned on what a sufficient delay would be before a document is publicly posted. One suggested a window of between a week and a month. Another suggested prioritizing document postings such that those requested by multiple people are posted immediately, while records requested by only one person are placed at the end of the posting queue.

Jones says that the government should be working with reporters to develop best practices and identify a window to prevent most scoops from happening. Pustay says that OIP has already gotten some comments from reporters requesting a lag time be built into the process. It’s a concern that she is definitely aware of, but one that she’s “reserving judgment on” before seeing all the comments OIP receives during the pilot program.

Outstanding questions

One issue that remains radically uncertain is whether documents turned over as the result of litigation will be posted online at the same time they are given to the requester.

Journalists contacted by the Reporters Committee expressed frustration with the idea that if a news organization successfully sues for access to records, they wouldn’t have an initial chance to exclusively report on them.

According to Leopold, a plaintiff in many FOIA lawsuits, there is “absolutely” a difference when it comes to litigation. “I believe that the documents I [sue for] belong to the people,” he says, “but in order to get those documents, it’s an investment . . . [and] for a news organization to invest in it they’re going to want to have exclusivity.”

FOIA cases routinely require tens of thousands of dollars in attorneys’ fees (although that can often be recovered) and may take years to move through both the trial court and appellate review.

Nonetheless, Leopold said that he would still sue for records, even if they are released to everyone at the same time. He already has some experience with the issue after securing a court order requiring the rolling release of Hillary Clinton’s emails, which are posted online by the State Department.

But there are certainly questions as to whether other news organizations, especially those with tight budgets, will be willing to spend the time, money, and effort to pursue lawsuits if they are not assured some initial exclusivity with the documents.

Pustay says that OIP is not focusing on how litigation interests will interact with the pilot program, partly because it has not come up and partly because only a small percentage of FOIA requests result in litigation. She does not think there would be any reason records released as a result of litigation would be treated differently from records released in other ways.

Another issue that is going to require some working out is how to format records posted online to ensure they are compliant with accessibility standards the government is required to follow by law. Both Holzer and Pustay say there are significant obstacles to overcome and that part of the pilot program’s purpose is to assess how much extra effort it will take on top of regular FOIA processing to ensure accessibility requirements are met.

Others, including Jones, say that the government’s concerns over accessibility compliance are overstated. One possible solution is to process all documents to extract the text before they are posted and then allow individuals to request a more accessible form of the document if they need it. DHS’s FOIA library for example, provides a phone number for anyone to call if they need additional assistance with accessing a document.

Assessment of the pilot program

After the pilot concludes In January, OIP will be collecting data from the agencies and components that have been participating to assess what worked, what did not, and how much additional effort was required to post records online. Pustay says that in addition to discussing the pilot with the participating agencies, she is interested in having a dialogue with media requesters and the open government community to discuss next steps.

Those interested in submitting comments on the pilot, or with other suggestions on a release-to-one, release-to-all policy can write to releasetoall@usdoj.gov.

In terms of input from other agencies, Holzer thinks that OGIS has a role to play. He says that his agency is “uniquely positioned to offer some experience and opinions on this issue” because it routinely has discussions with both government officials and FOIA requesters, including members of the media.

Ultimately, while many reporters support or are indifferent to the new policy, they also say that there are bigger problems with FOIA that should be tackled first. Chief among these is the massive backlog at agencies and the accompanying delay in getting records at all. As Heath remarked, before you can have “release to one release to all, you have to have release to one.”