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Last Week in FOIA—Exploring Solutions to Today’s Problems

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On Tuesday of last week, the Project On Government Oversight participated in a Freedom of Information Act (FOIA) Best Practices Workshop hosted by the Department of Justice’s Office of Information Privacy (OIP). OIP hosted the event in order to connect FOIA professionals with the community that they serve. Amy Bennett from OpenTheGovernment.org, Josh Gerstein from Politico, and I represented the requester community on a panel that was moderated by Melanie Ann Pustay, the director of OIP. Members of the panel were encouraged to share good experiences we have had during the FOIA response process and to recommend best practices FOIA professionals should apply.

It became clear during the two-hour workshop that one of the biggest frustrations requesters face is a lack of communication from agencies, which also happens to be one of the easiest for agencies to address. Communication best practices included: sending an acknowledgement when a request is received, making sure that FOIA Liaison contact information is current and posted online, and labeling when a responsive document has been subject to EO 12600 review. Other communication suggestions were to make use of electronic communication methods, inform a requester when his or her request is being referred to another agency, and work with a requester to narrow a request to facilitate faster response times.

Two days later, the Georgetown Law Privacy Center held a conference on the 40th Anniversary of the Privacy Act and the 1974 Amendments to the Freedom of Information Act. Among the topics covered was the past, present, and future of FOIA. Originally, FOIA was intended to open up the government, although it included nine exemptions or categories of information that agencies could, but are not required to, withhold. There was significant time at the conference devoted to discussing exemption 5, which allows agencies to withhold inter-and intra-agency records, because members of the open government community have noticed a large increase in its use over the last few years. Georgetown Law professor David Vladeck opined that exemption 5 is now being used as a blanket exemption, a practice that must be addressed as it goes against the spirit of FOIA and the intention behind the exemptions.

Taking a look at where FOIA started and where it is today set the stage for the afternoon panel focusing on how we can fix the current problems with FOIA. Ample time was given to a discussing the bipartisan FOIA Improvement Act of 2014, introduced by Senator Leahy, as well as discussing technology-based solutions to address FOIA’s shortcomings.

POGO has advocated for FOIA reform for years and strongly supports the FOIA Improvement Act of 2014. The bill would codify President Obama’s instruction to treat responsive documents with a presumption of openness, and would amend exemption 5 to require agencies to weigh the public interest in disclosure against the agency’s ability to withhold information. The bill would also strengthen the Office of Government Information Services (OGIS), giving it the ability to submit its recommendations to change FOIA practices directly to Congress and the President.

The bill would also require agencies to make frequently requested records available online and clarify that agencies cannot charge fees for responses to requests that have exceeded the statutorily mandated period. While we await a marked up version of the bill, POGO has joined dozens of other interested organizations in asking the President to go on record with his position on FOIA reforms. Reviewing where FOIA came from and how it got to where it is now is a crucial step in determining how to reshape this important open government tool to serve our citizens in the 21st century.

By: Elizabeth "Liz" Hempowicz
Policy Counsel, POGO

Photograph of Elizabeth Liz Hempowicz is Policy Counsel for the Project On Government Oversight.

Topics: Open Government

Related Content: Government Secrecy, FOIA, Information Access

Authors: Elizabeth "Liz" Hempowicz

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