I predict E-FOIA will slow down agency responses
The amendments to the Freedom of Information Act passed this fall are a decidedly mixed bag. The political spin is that the changes bring the FOIA into the computer age by making electronic records available to requesters. This sounds nice, but the rhetoric is overblown. Electronic records have been available under the FOIA for years. Current disputes over electronic records are no worse than over paper records. Still, these changes will help a bit and
The amendments to the Freedom of Information Act passed this fall are a decidedly mixed
bag. The political spin is that the changes bring the FOIA into the computer age by making
electronic records available to requesters. This sounds nice, but the rhetoric is
overblown.
Electronic records have been available under the FOIA for years. Current disputes over
electronic records are no worse than over paper records. Still, these changes will help a
bit and don't do any damage.
The more troublesome parts of the new law add new procedural requirements. These
amendments are an unwise attempt to control with legislation the details of the
administrative process. Most agency FOIA operations likely will slow down as agencies
spend more time on process and less on actual disclosure. Bureaucrats won't mind this
because procedural matters are safer and less revealing than substantive decisions.
Let's take a look at just one aspect of the amendments. The law allows a restructuring
of the queues for FOIA requests. Most agencies maintain one queue for requests, with
first-in, first-out processing. Some agencies with large backlogs have two queues. For
example, the FBI divides requests into project (big) and nonproject (small) requests. This
allows more efficient processing and faster treatment for small requesters who do not have
to wait behind massive requests.
Although the FBI had no statutory authority to establish a two-track processing system,
the courts have not objected. Still, for reasons that are unclear to me, Congress decided
to authorize, but not require, agencies to establish multitrack processing systems based
on the amount of work or the time involved in processing requests.
There is nothing terrible here, but the new statutory language raises more questions
than it answers. How many tracks can an agency have? It must be more than two because the
law provides for multitrack and not two-track processing. Can an agency have 10 tracks?
Nothing in the new law requires an agency to inform a requester to which track a
request has been assigned. A smart agency will establish at least three tracks.
Troublesome requests then can be assigned to the slowest track. If the requester does not
ask, the request may languish, possibly for years.
If the requester inquires and objects, the agency can engage in a drawn-out discussion
about the request. The law expressly permits a requester to modify a request so that it
can qualify for a faster track. Lengthy administrative delays are likely to become common
in some agencies as a result.
The reason to have three tracks is so that an agency can always compromise with an
unhappy requester. An agency can agree to move a request to the middle track, making it
more difficult for the requester to complain to a court or otherwise. Of course, the
compromise may not be offered until months have passed.
If a request is transferred to a different track, where does it go in the queue? Does
it move to the end or to the place where the request would have been had it been assigned
to that queue when first received?
Does it matter if the requester modified the request? Can those who modified a request
be treated better than those who refused? Each of these questions could take years of
litigation to answer.
It gets worse. The amendments require agencies to provide for expedited processing of
some requests. This means yet another queue for requests. Can an agency establish multiple
tracks just for expedited requests? Must an agency devote all of its FOIA resources to
expedited requests before it processes any regular requests? Opportunities for
game-playing by agencies abound.
I could go on asking questions, but the point is clear. The changes to the law are not
necessarily beneficial to requesters, nor will the processing of requests be accelerated.
Procedural "improvements" made in 1974 and 1986 did not work the way Congress
intended. The bureaucracy did what it wanted despite legislative direction otherwise.
The same thing will happen with the 1996 amendments. Guidance from the Office of
Management and Budget might limit the damage, but hoping that OMB will help is a sign of
desperation and lousy legislation.
When the dust settles and the rhetoric fades, requesters will find that disclosure has
slowed even further. Since the requester community asked for these amendments, it will
have no one to blame but itself.
Robert Gellman, former chief counsel to the House Government Operations
Subcommittee on Information, Justice, Transportation and Agriculture, is a Washington
privacy and information policy consultant. His e-mail address is rgellman@cais.com.
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