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A week after the Freedom of Information Act’s 50th anniversary, the Senate Judiciary Committee held a hearing that addressed next steps for improving and enforcing the law.
The July 12 hearing also celebrated the passage of the FOIA Improvement Act of 2016, which President Barack Obama signed into law on June 30.
The four witnesses at the hearing praised the law’s accomplishments, which include creating a “presumption of openness” toward disclosing records, as well as requiring the government to create a single online portal for FOIA requests. The law also ensures greater independence for the Office of Government Information Services (OGIS), the FOIA ombudsman.
But witnesses said that Congress and government agencies should do more to prevent the long delays and unnecessary denials commonly faced by FOIA requesters. They proposed solutions such as using better technology to reduce delays, proactively disclosing certain records and guarding against FOIA exemptions slipped into other bills.
“We still have a lot of problems with FOIA,” said David Cuillier, director of the University of Arizona’s journalism school and former president of the Society of Professional Journalists, who testified at the hearing. He cited an analysis by The Associated Press that found the Obama administration set a new record last year by responding to 77 percent of requests with either censored records or no records at all.
Cuillier also said that Congress should create enforcement mechanisms so that there are consequences for agencies that do not follow the law.
Another witness, Rick Blum, said that agencies could reduce FOIA delays by organizing their digital records in a way that makes it easier to find relevant documents. Blum is the director of the Sunshine in Government Initiative, a coalition of nine media groups that includes the Reporters Committee.
“Probably the single biggest factor deterring journalists from using FOIA is the long waits,” Blum said.
By law, federal agencies have 20 business days to grant or deny a FOIA request. But agencies may delay their response if they face “unusual circumstances” — for instance, if they have to search through large amounts of records or consult with other agencies.
Blum noted in his written testimony that massive backlogs of requests often prevent agencies from meeting the 20-day deadline. FOIA requests have been rising in recent years, and federal agencies now receive more than 700,000 requests annually.
Witness Margaret Kwoka, an assistant professor at the University of Denver’s Sturm College of Law, said that commercial requesters account for much of the FOIA backlog. Kwoka’s research found that at many regulatory agencies, commercial requesters made up the majority of requests.
Kwoka said commercial requesters often make large numbers of FOIA requests at a time so that they can research their competitors or resell the information to private parties. In her submitted testimony, she cited examples of companies that exist for the sole purpose of selling information gained from FOIA requests.
“These commercial requests advance primarily private interests rather than promoting the public’s knowledge about governance,” Kwoka said.
“News media and other requesters may be crowded out due to resource constraints,” she added.
Since commercial requesters tend to request the same kinds of records many times, Kwoka said agencies should proactively disclose the most commonly requested categories of records, rather than processing each of these requests as it comes in.
Committee chairman Sen. Chuck Grassley (R-Iowa) also spoke in favor of proactive disclosure.
“By releasing information before it’s requested, agencies could go a long way towards reducing delays and improving transparency,” he said in his statement.
Other solutions that witnesses proposed included providing FOIA training for more government employees and finding ways to reduce long consultations between agencies. Blum also suggested in his written testimony that Congress could create a public-interest balance test to decide whether an exemption to FOIA outweighs the public interest in transparency.
Miriam Nisbet, the founding director of OGIS, also testified. Nisbet, who is now retired, spoke about the benefits of an independent OGIS and emphasized the need for more communication between government officials and FOIA requesters.
“Agency FOIA professionals and FOIA requesters alike are frustrated by backlogs, they’re stymied by underutilization of technology, and they’re disappointed by adversarial encounters,” she said. Nisbet said the recent changes to FOIA would “surely help” these frustrations.
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