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FOIA Panel Sees Progress, Challenges for Law on 50th Anniversary

Posted on October 14, 2016 by Hoffman, William

People who request federal records under the Freedom of Information Act may be surprised early next year to find the information they asked for already posted online for all to see, a panelist said at Tax Analysts' October 13 forum on FOIA and government transparency.

FOIA Conference PanelA newly expanded "release to one, release to all" pilot program of seven federal agencies from July 2015 to January 2016, which made documents frequently requested under FOIA public without further requests, may "scare" some reporters seeking to scoop their  competitors, said the panelist, Kevin M. Goldberg, who is legal counsel to the American Society of News Editors.

"A statistical survey would bear out that [reporters are] probably a 3-1 ratio in favor, versus really terrified," said Goldberg, who is also a member at Fletcher, Heald & Hildreth PLC. A new Chief FOIA Officers Council, comprising top agency officials concerned with  the disclosure law, is supposed to pass along to the Office of Management and Budget guidance on further promoting the release-to-all initiative by January 1, 2017.

The Justice Department pilot program and congressional reforms to the FOIA process in the FOIA Improvement Act of 2016 (P.L. 114-195) were highlighted at the Tax Analysts forum in Washington. While it is often thought of as a journalists' tool, virtually anyone can use FOIA. Panelists shared complaints about agencies unjustifiably withholding documents. Almost 12 percent of FOIA requests to the IRS withheld some information the requester was entitled to, according to a September 1 Treasury Inspector General for Tax  Administration report.

The panelists agreed that government agencies are resistant to the FOIA process at the same time Congress and the public want more transparent government.

"There's one real answer to FOIA [problems, and] that probably will never happen -- certainly hasn't happened," Goldberg said. "More money needs to be put into this, whether it's more staffing, more technology. Those are the two big items."

"But until there is just more capability to move things through the [FOIA] system, it will always be somewhat slow, and you need to just accept that and deal with it," Goldberg advised.


Year of FOIA Reform


President Obama issued a memorandum on his first day in office in 2009 directing federal agencies to adopt a "presumption of openness" when dealing with FOIA requests. On signing the FOIA Improvement Act on June 30, the president tasked the new Chief FOIA Officers Council, drawn from the head FOIA officers at each federal agency, with addressing the major impediments to making FOIA work across the government.

The FOIA Improvement Act requires the OMB to set up a single online portal from which people can submit FOIA requests to any agency of the federal government. The new law limits the use of disclosure exemptions (nine in total contained in FOIA) unless the agency reasonably foresees harm to an interest protected by the exemption. It also requires agencies to make documents available in an electronic format and to release them to the general public if the documents have been requested three or more times.

The original FOIA law, enacted in 1966, helped uncover federal documents that illuminated the hidden workings of government. That included Tax Analysts' long battle in the early 1970s to force the IRS to release private letter rulings for public inspection, noted Tax Analysts President and Publisher Christopher Bergin. FOIA also played a role in exposing U.S. government documents related to the 1976 car-bombing death of Chilean diplomat Orlando Letelier in Washington, the use of Agent Orange in Vietnam, and the purchase of faulty body armor worn by U.S. soldiers early in the 2003 Iraq war, Goldberg added.

Still, Goldberg said, "The [FOIA] process can take months or years" to produce results, and may include court costs and fees that journalists and ordinary taxpayers will find stifling. Goldberg said he tells congressional aides and agency heads, "Yes, we need to teach our side better to help in this process." But growing public use of the FOIA process has not been matched by increased federal resources to handle the demand, he said.

Rick Blum, director of the Sunshine in Government Initiative, said that despite the latest reforms, "It's just a big Wild West out there, on creating new statutes" that limit public access to documents arguably subject to FOIA at particular agencies. Depending on how you count them, Blum said, there are more than 300 agency carveouts from FOIA requests.

For example, Blum said journalists have been fighting a legislative proposal to exempt the Defense Department from FOIA disclosures. "We're trying to fight that now," he said. "But that's too late in the process. We've got to do it earlier. We've got to find these things earlier."

Blum agreed with Goldberg on the funding issue. "That's the big one. We're hoping that with these management improvements, more leadership, that there will be some way to identify good, smart investments, that then Congress will feel willing to invest a little bit more money into it, and the agencies will be willing to request the money. And that's a big issue."


States and FOIA's Road Ahead


Cara Griffith, editor in chief and vice president of editorial operations at Tax Analysts, said that over the past three years the organization has ramped up efforts to use state FOIA laws for document production.

At the federal level, but especially among state agencies, Griffith said, revenue agency officials' sense is too often "that providing a requester with the documents is somehow going to affect [the agency's] ability to collect the maximum amount of revenue. So that's the push-and-pull that we're always struggling with."

All states have some type of document disclosure law, many modeled after the federal FOIA law, Griffith said. But the federal act and supporting case law are not applicable to state agencies, she noted, though the former sometimes informs the latter. State laws also tend to have more exemptions built in, but state agencies usually interpret them more narrowly than their federal counterparts, Griffith said.

State agencies complain, like their federal counterparts, about the time and expense of responding to FOIA-like requests, Griffith said. Some simply don't respond to requests, she said. But some responses may seem odd. One state agency refused to produce its training manuals because it said they contained private taxpayer information, she said. Some states require that a requester be a citizen of their state, she noted.

Other states invoke a "trade secret" exemption, Griffith said: "A government doesn't have a trade secret -- that is a business that has a trade secret," she said. The IRS and some states have responded that something in a requested document may be "proprietary" to the state agency, she said. "Which I feel like on its face is just absurd, because there is nothing that is in fact a trade secret to the government," she said.

Blum said journalism organizations are working hard to improve the FOIA law.

"I think the last decade has seen a number of the groups who are fighting for transparency working together," Blum said. "The news media has gotten together in the last decade, in part because a lot of the different trade associations were working on these battles piecemeal, as a crisis came up, and were trying to respond."

"We need to do it even bigger," Blum said. "We need to do it even better, we need to build on sunshine leaks so that we're fighting and we're educating the public year-round, so that Congress can weigh in on some of these things if it's brought to their attention."