Agency FOIA officers discontent with House reform bill

Wednesday - 3/19/2014, 6:19am EDT

Jason Miller, executive editor, Federal News Radio

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Some agency Freedom of Information Act officers don't believe the House-passed reform bill will do much to improve how the government responds to document and information requests.

They say the FOIA Oversight and Implementation Act of 2014 (H.R. 1211) would only makes changes around the edges.

The FOIA officers, speaking for themselves based on their experiences and not for their agencies, say the FOIA Act, which passed the House 410-0 on Feb. 25, focuses too much on the end of the process and the consumer of the information.

Agency FOIA officers say they are the ones that the bill needs to help in many respects because the increased number of requests and expectations haven't come with more resources yet.

Michael Binder, a technical advisor in the Air Force's Declassification Office, said Tuesday at the American University Washington College of Law's seventh annual Freedom of Information Day event that the bill misses the mark.

He told a panel of congressional staff members at the event that they should talk to the people who do the work every day. He said the biggest problem is the lack of resources, mainly in terms of staff needed to review the requests.

Binder said FOIA officers need help from Congress to separate the requirements for classified and unclassified documents. He said removing the 20-day response requirement for classified documents would make sense as well since it almost always takes much longer to declassify documents.

Concerns about the online portal

Two other FOIA officers from the departments of Interior and State said they are concerned about the three-year pilot to implement an online FOIA portal.

The State Department representative, again speaking for herself, said there may be unintended consequences from the creation of a new online portal. The employee told the panel that the online portal could create a larger backlog because requesters would just blanket all agencies with the same request whether or not it pertains to them.

The Interior FOIA officer also said she was concerned about the online portal. She said the bill doesn't take into account the Section 508 requirements to make sure documents are accessible to people with disabilities.

Additionally, each of these two FOIA officers brought up the need for more resources.

The congressional panel encouraged the FOIA officers to meet with the committees to tell them about their challenges, but only addressed funding issue.

Ali Ahmed, a professional staff member for the majority of the House Oversight and Government Reform Committee, said FOIA, like every federal program, is facing the same budgetary issues.

"To the extent it plays into the considerations that went into H.R. 1211 and should play into that as we move forward with potential considerations in the Senate, we should attempt to make reforms that ultimately will spare the agency's resources whether that's getting ready for the digital government reforms that will improve the speed and efficiency of FOIA processing, it's something that absolutely plays into considerations," said Ahmed, who's boss is committee chairman Darrell Issa (R-Calif.), the author of the FOIA Act. "But there's a need to advance common sense reforms even now in our tight budgetary environment."

So basically, what the staff members are saying is the FOIA Act will save agencies money. But what they may be considering is the cost to gain those efficiencies in the short term.

$20 million to implement

The Congressional Budget Office determined the FOIA Act would cost about $20 million to implement between 2014 and 2018.

CBO said the workloads of most agencies would increase to carry out the bill's new reporting requirements. CBO also estimated that the National Archives and Records Administration would face additional costs to arrange for a new annual meeting and to establish a Chief FOIA Officers Council to review and improve the FOIA process.

In all, the FOIA Act would amend the Freedom of Information Act in 12 ways, call for the online portal and require more oversight by agency inspectors general.

Ahmed said the bill is bipartisan and tries to address areas that nearly everyone agrees needs to and can be fixed.

"It is about improving the implementation of FOIA, such as the requirement that agencies update their FOIA regulations in-line with the other laws that Congress has passed, and it's about creating mechanisms for oversight and improving existing mechanisms for oversight so there is a continuous reform effort that doesn't necessarily have to take place within legislation--provisions like the Chief FOIA's Officer's Council and the open government advisory committee," Ahmed said. "One thing that I know Chairman Issa is particularly excited about is the Office of Government Information Services within NARA will be able to directly communicate with Congress and not have to go through the Office of Management and Budget. We think from a FOIA ombudsman perspective that is what ombudsman can do, which is take its issues with the public authority direct to the people and this case direct to the people through its representatives in Congress."