The Office of Information Policy (OIP) recently published its annual Summary and Assessment of the Chief FOIA Officer Reports for 2016. It’s hard to take their findings seriously, however, when they conclude that agencies earned overwhelmingly positive marks despite growing dissatisfaction among requesters who use the Freedom of Information Act (FOIA).
Two good examples of bad methodology can easily be found in the survey questions OIP used to rate both: 1) how well agencies implement the President’s and the Attorney General Holder’s instructions to proactively disclose documents where possible; and 2) how well agencies are reducing their backlogs of FOIA requests. These examples reflect the larger problem with FOIA implementation: that agencies are less focused on the quality of responses and released records, and more about complying with the law’s requirements on paper.
Frequent FOIA requesters are frustrated with both of these aspects, so the perfunctory questions of whether an agency has a process to identify proactive disclosures or if the backlog has decreased don’t get to the root of the problems.
OIP should more thoroughly examine whether the processes for determining if records are ripe for proactive disclosure are working before rubber-stamping a 100% satisfactory rating because an agency merely has a process. For example, OIP should be asking what kinds of records are being proactively posted. Agencies who just post their annual reports online, a great practice, shouldn’t receive the same marks as an agency who actively posts records that may interest the public as they are created.
Similarly, OIP should require agencies to report how many backlogged requests were closed due to a requester withdrawing his or her request versus how many requesters had their requests closed on them because the requester didn’t answer a “still interested letter” in a timely manner.
Reducing the backlogs of requests is a great initiative for agencies to take. However, the purpose of FOIA isn’t to have a zero balance of requests, it is to release non-protected information to the public in a timely and responsive manner.
Given these questions and ratings, it is unsurprising that OIP declares agency implementation of FOIA a success. However, given the unrest among the users of FOIA, it is also unsurprising that in a House Committee on Government Oversight and Reform hearing last year, Chairman Jason Chaffetz told the head of OIP that she was “living in la-la land” if she really believed OIP’s determination that agencies are doing a great job implementing FOIA.
In order to fully capture the state of FOIA implementation in agencies today, OIP’s methodology in these annual reports needs to include questions that get to the heart of the issues of implementation – not ones that provide a figurative check box for agencies to pat themselves on the back for a job well done.