Agencies should compete to comply with FOIA

Implementing the amendments to the 1996 Electronic Freedom of Information Act is giving
some agencies fits.


The first example comes from December’s release by the FBI of its Frank Sinatra
files. The files ended up on the Internet, but the FBI didn’t post them there. Who
did and why?


Journalists routinely make FOIA requests to the FBI for the files of every celebrity
and political figure who dies. The FBI is paying for the investigative excesses of the J.
Edgar Hoover era by having to process for public release all of the information it
unwisely collected for decades. Sinatra’s file contained more than 1,200 pages.


When releasing files created after Nov. 1, 1996, agencies are required to make them
available electronically. But the Sinatra files were created before the deadline, so the
FBI did not have to post them.


Yet the public interest was high. Dozens of requesters had asked for the Sinatra files,
and the FBI released 50 copies. The resulting news stories ran on television and in
newspapers all over the country.


The FBI didn’t put the records on the Net because it didn’t have to—a
correct, if rather crabbed, view of FOIA. The records ended up there anyway because
someone else recognized the appeal of the Sinatra files and put them on a Web site. That
someone is APB Online—a site that describes itself as the source for police and crime
news, information and entertainment. It’s at www.apbonline.com.


To its credit, the FBI has posted at www.fbi.gov some older files released under FOIA
that it is not required to post. But the FBI did not have the capability of digitizing the
Sinatra files quickly enough. That is unfortunate. Scanning files and posting them on the
Internet is not difficult or expensive anymore. APB was able to do it the same day the
files were released. The FBI should develop the same capability, or it should hire someone
who can.


Other agencies should learn from the experience. It is perfectly permissible to do more
than the minimum required under FOIA. If you have something of public interest, find a way
to post it on your Web site. Disclose information, build traffic, get attention, serve the
public, and develop a constituency.


Another provision of the 1996 amendments calls for improved annual reports. The old
reports did not contain enough useful information, and Congress finally got around to
asking for better data. Some of the new data elements are specified in the statute, and
Congress told the Justice Department to establish additional requirements. You can find
them at www.usdoj.gov/oip/foia_updates/Vol_XVIII_3/page2.htm.


Unfortunately, the responsibility fell to the Office of Information and Privacy at
Justice. OIP tweaked the reporting requirements to suit its own interests and to support
its ongoing campaign to undermine FOIA. I offer two examples:


Why are only litigation costs to be estimated? Justice incurs most litigation costs. My
guess is that it doesn’t want to be held to the same standard it sets for everyone
else.


So why calculate the percentage of costs recovered? Because OIP apparently wants to
argue for reducing public access based on cost. It subtly pressures agencies to increase
FOIA fees and to reduce disclosure.


No agency or department should fall for the anti-FOIA ploy. To the contrary, agencies
should compete with each other for the lowest percentage of cost recovery. The less an
agency recovers in fees, the better a job it is doing in meeting the disclosure objectives
of the law. 


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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