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From the Summer 2011 issue of The News Media & The Law, page 21.
Your federal Freedom of Information Act request may not actually be processed by a government employee.
With pressure for increased transparency from the Obama administration, many federal agencies, including the Department of State, the Department of Homeland Security and the Department of Justice, are outsourcing aspects of their FOIA services to contract workers.
The trend of hiring privately contracted employees for FOIA processing comes at a time when federal agencies are receiving more requests while also pushing to reduce the number of old FOIA requests in their systems. In its December 2009 Open Government Directive, the Obama administration requested that agencies with significant backlogs reduce its backlog by 10 percent each year.
Contracting non-governmental employees to aid with FOIA processing began about two decades ago; however, government officials agreed it seems to be becoming more popular in recent years as agencies aim to be more efficient and reduce FOIA backlogs.
Proponents of the idea say outsourcing FOIA work helps the public by ensuring information is released in a timely manner. Others argue public records request processing is an inherently governmental activity that shouldn’t be handled by private companies with limited knowledge of agencies and their interests in documents.
Government policy regarding contract work says private employees cannot complete tasks that are “inherently governmental,” but federal agencies interpret this phrase differently. Therefore, the extent and responsibilities of contract workers in FOIA administration also varies widely.
The Office of Information Policy at the Department of Justice oversees compliance with FOIA laws. It views contract support in FOIA administration as a positive development.
“Contract workers are filling a need in ensuring timely and appropriate processing of FOIA requests,” said OIP Director Melanie Ann Pustay. “Anything that frees up the FOIA processing agency to spend more time making disclosing determinations, rather than spending hours and hours on more administrative aspects of FOIA, is a good thing.”
Scope and use of contract work in FOIA
Government officials contacted for this story said they were unsure of the exact number of contract workers in FOIA administration, but believed it is a relatively small percentage that is growing. In 2004, OIP published a report on the use of contract workers in FOIA administration, finding they were becoming a “significant” part of the process, especially when compared to two or three decades ago when it was rare, except for contract employees conducting photocopying or other duplication work.
Contract workers can be hard to differentiate from government employees. They are directly integrated into an agency, share office space, and obtain the same clearances and background checks required of a federal employee.
Karen Rowe, president and CEO of Front Rowe Inc., a company in Fairfax, Va., that outsources contract workers to federal agencies, said the company’s employees can obtain as high as “public trust” clearance, which is one level below “secret” clearance.
“They are not looking at classified documents,” she said.
Each agency has the authority to decide what is appropriate or necessary for contract employees to do as long as it follows government policy.
One seemingly uniform aspect across all agencies is that contract workers are not allowed to give final approval on a request response because that duty is considered “inherently governmental.” That means that they may make recommendations on what should and should not be disclosed, but, ultimately, the final decision must be made by a government employee.
Government policy regarding contract work changed in May 2003 when the Office of Management and Budget began to require government agencies to classify all activities into “inherently governmental,” which must be performed by a government employee, or “commercial,” which must be carried out in the most inexpensive and efficient means possible.
The updated policy differed from the previous one from 1992 because it says “commercial” work, which does not involve discretionary decision making, must done by contract workers if it is the cheapest option. The 1992 policy said it was merely permissible for contract workers to do “commercial” work.
However, the 2004 OIP report on contracting surveyed agencies on their use of contract workers and found interpretations of the updated 2003 Office of Management and Budget policy greatly varied. The survey showed that the Department of Homeland Security regarded FOIA processing as inherently governmental almost in its entirety, so it did not allow contractors to make any discretionary decision making.
The Department of Defense, Bureau of Land Management, the Department of State and the Department of Transportation also limited private employees’ responsibilities to “simple” processing of requests that are straightforward and involve little discretionary decision-making.
The Department of the Interior, National Security Agency and Justice Department’s Executive Office for U.S. Attorneys reported they always had government employees review any work done by a contractor.
However, some agencies, though not named in the report, were virtually unaware of the policy guidelines.
“[This] suggests that the use of contractors in FOIA work is becoming so commonplace that the authority for agency activity in this area now stands unquestioned as a general rule,” the report said.
Representatives at Front Rowe and Central Research, another outsourcing company based in Lowell, Ark., said their employees who are contracted out to federal agencies are often responsible for the entire FOIA process — receiving the request, responding, locating and redacting documents — before submitting recommendations on what, if anything, to release to a requester. A governmental employee still makes the final decision, however.
“It’s a pretty arduous process,” said Amanda Sams, contracts manager at Central Research. “[Contractors] are in constant communication with FOIA liaisons.”
Contractors in the vast majority of cases are not heavily involved in the appeals process, as it involves more discretionary decision-making.
In contrast, some agencies assign contract workers more limited administrative duties that involve relatively no decision making such as sending standard responses to requesters or contacting people within the agency seeking documents for review.
At the Department of Transportation, contractors’ duties vary even within the department, a representative said. Its Maritime unit hired temporary contractors for a specific one-year backlog reduction goal, while the Metrocarriers division uses half federal employees and half contractors on a day-to-day basis for more routine purposes.
“FOIA processing lends itself well to contract support — all you need is a federal employer to approve it,” the representative said. “It helps to have an extra team going through documents.”
Concerns about contractors
Anne Weismann, president of the American Society of Access Professionals, said she has mixed feelings about contractors working on FOIA services in the federal government. While she understands there may be a personnel need, she said she believes the government should be more transparent about using contractors by providing full disclosure in their annual FOIA reports on exactly how many contract workers are hired and what they are responsible for.
“Agencies are plagued with backlogs, and any way to get out of that is good,” said Weismann, who is also chief counsel for Citizens for Responsibility and Ethics in Washington. “However, I wish there was more transparency on the use of contractors and what they are doing.”
Scott Hodes, a Washington D.C.-based FOIA attorney who spent more than a decade working for the federal government, said he believes there should be a uniform policy outlining exactly what FOIA contract workers are allowed to do in addition to officials releasing the amount of money they are saving by hiring private employees instead of using federal workers.
Agency officials said it often makes more financial sense to hire temporary workers instead of going through the long process of hiring a permanent government employee.
Sams agreed that companies like her’s are the fiscally responsible option for agencies.
“It’s cheaper for an agency to use us than it is to hire a person to do a federal job,” she said.
Hodes noted that, while he understands some of the benefits of temporary work, he sees many flaws in using contract employees for day-to-day functions.
“It seems they just hand over the FOIA operations to contract workers with little oversight,” he said. “[The agencies] say they have final approval, but really, there’s no day-to-day oversight.”
Hodes said he believes FOIA work is a government responsibility that should be carried out by government workers who have advanced knowledge about where they work, not temporary employees new to the agency.
“If you’re a contractor, you don’t really work for the agency, so you don’t have that pride of ownership because you’re not there for the long haul,” he said. “Even if you know a lot about FOIA, it’s good to have people with knowledge of the agency and its history.”
Training FOIA contractors
Those familiar with contract work maintain that private employees are extensively trained in FOIA to help ensure agencies are complying with the law and open-government initiatives.
The 2004 OIP report found that, for the vast majority of cases, agencies were pleased with the work contract employees carried out.
The report said the Bureau of Land Management, a component agency of the Department of the Interior, was the only agency surveyed to not describe their contractors’ work as “good” or “excellent.” The agency had a well-performing contractor at first, but the second one it hired “did not meet quality standards and was terminated.” However, the department said it was so pleased with the contract workers overall that it would hire them as permanent employees if it had the money to do so, which the report said is not an uncommon practice.
Central Research markets itself on its website by saying “various amendments to FOIA have made the process complicated and time-consuming” and that “it takes a dedicated, professional staff to handle FOIA requests that balance the private interests of citizens and the public necessity for security.”
Central Research has 60 to 70 employees and will send out as many contractors as an agency requests.
Central Research’s employees’ educational backgrounds range widely, from those with only a high school diploma to those with law degrees. But nearly all must participate in FOIA training.
Front Rowe’s employees consist mainly of paralegals or individuals with bachelor’s degrees in public policy. They also go through FOIA training with the Department of Justice and the American Society of Access Professionals.
The Department of Justice holds training for anyone in the government, as a permanent or contract employee, working with FOIA. Pustay said the seminars range from introduction to FOIA to litigation concerns.
“It is our responsibility to encourage compliance and understanding of the law,” she added.
Weismann said contract workers have attended the American Society of Access Professional’s training sessions, but she is unsure how frequently they attend because attendees are not labeled as government or non-government employees.
Cutting down the backlogs
One area of success under the Obama administration has been the government’s ability to significantly cut back on its backlog of FOIA requests. It had more than 130,000 incomplete requests in fiscal year 2008, but that number dropped by nearly half to almost 70,000 in 2010, according to www.foia.gov.
Many agencies have made backlog reductions on top of handling an influx in requests; the government received more than 600,000 requests in 2010.
“[Filing FOIA requests] is an increasing trend,” Sams said. “When Obama came out with his open government initiative, the public started becoming more aware that they can actually go out and get information, causing an influx in requests. Some agencies are bogged down because they haven’t had the people there to process them, and with more coming in, you don’t want to get a backlog.”
Agency officials agreed there is a need to hire private employees trained in FOIA to address specific goals.
Thomas said there are several circumstances where it’s more appropriate to hire outside FOIA help.
“Clearly, I think agencies are grappling with how to deal with rising backlogs, and if the workforce is shrinking, managing backlogs becomes more difficult,” she said. “And if there is a dramatic increase in requests, such as after a major event like 9/11, and agencies are inundated with requests of public interest, a steady workforce is unable to properly deal with that. There would need to be additional assistance, and permanently increasing the workforce rather than hiring temporary workers would end up costing taxpayers more money.”