Agencies scramble to comply with Electronic FOIA rules
- By Peyman Pejman
- Apr 14, 1997
Congress passed the 1996 Electronic Freedom of Information Amendment in October. The
law does not require agencies to convert paper documents to a digital format for
electronic distribution, though members of Congress said they might add such a provision
in the future.
The EFOIA law is vague on certain points. But it does require agencies to "make
a reasonable effort" to provide requesters with documents in formats other than the
format in which the agency maintains its records.
The law does not define reasonable effort, and some lawyers and FOIA officers
predict it is an issue the courts will have to determine. This raises the possibility that
different courts might contradict one another.
Some FOIA experts contend the law is tantamount to a new philosophy on document
management, one which agencies have so far avoided and one which will decrease future FOIA
"What Congress has done is to say $25 billion is spent annually on getting
information to the public. Much of that information is publicly available and should not
be subject to FOIA," said David Dempsey, a Washington lawyer who specializes in FOIA
"This is a trial by fire for a lot of agencies, and only time will tell how
successful they will be," he said.
Alvin Pesachowitz, chief information officer for the Environmental Protection Agency
and vice chairman of the CIO Council, said agencies understand Congress' underlying
message: Make as much information available electronically as possible.
The CIO Council has been encouraging agencies to build robust World Wide Web pages
and "put as much of their FOIA-able information there so we would not get as many
requests," Pesachowitz said.
Though FOIA requests are declining generally, in part because more information is
available online, some larger departments-including the Defense Department and the
FBI-still are coping with heavy backlogs.
Agencies must deal with two primary issues: changing agencywide attitudes on
document management and deciding how to meet the new law's mandates within existing
"EFOIA is a natural outgrowth of FOIA. It is just that many agencies have not
prepared for it," said Harry Kaplowitz, president of Infodata Systems Inc. of
"Success in implementing EFOIA depends on your definition of document
management, how you view a document. If you look at it as a tail-end process, it means one
thing. If you look at it as an agencywide process that defines how you produce a document,
where you store, how you index it-that's a different approach," Kaplowitz said.
Devising document management procedures that cover an entire agency will likely be
challenging to large, decentralized agencies, government and industry officials said. Many
Cabinet-level agencies have granted subagencies and bureaus autonomous authority over
hardware and software use.
"With the elevation of the role of CIOs, it is certainly their responsibility
to put out policy that each department will have to meet," Pesachowitz said.
Another issue is cost. The Office of Management and Budget has said agencies must
pay for systems upgrades to meet EFOIA with existing funds. And currently, vendors said,
there is no simple one-stop solution.
"There is no out-of-box solution. We are not selling out-of-a-box software here.
We are selling technology and expertise," Kaplowitz said. "But you don't have to
fix the entire system at once. There are more incremental ways of doing it, and many
agencies are taking a baby-steps approach to the problem."
Bill Zoellick, director of Cap Ventures Inc., a Marshfield, Mass., research company,
said the price of document management systems could decrease in a few years as intranet
tools make systems integration easier and push down software prices.
"So far, document management has been very much a two-tier proprietary system.
What you need now is an information middleware system and that market is so new that only
a couple of companies have moved into it," Zoellick said.
"The fact that the government is an added customer is not sufficient incentive
for other companies to move into the field. There is an entry cost into the field,"