FOIA Facts: High Profile FOIA Requests

It was recently reported that the Department of Homeland Security (DHS) had added a new layer of scrutiny for FOIA requests that came from what it considered high profile groups (basically political non-profits and media organizations). The reports stated that the agency took these requests and added another layer of processing by higher ups in the organization. The argument is that this review did or could potentially deny these requesters material they should receive and these denials (or potential denials) were only for political purposes.

A few years ago, I wrote an article about how agencies should create rapid response teams to deal with cases that may likely end up in litigation. In its own incompetent way, this is what I believe DHS was trying to do. There are a number of legitimate reasons why top agency executives and others should know about certain FOIA requests before the releases are made. For instance, agency officials should not be surprised by questions asked by reporters or the public from a high profile FOIA release made by their agency. Nor should the Office of General Counsel find out about a FOIA complaint from a story in the Washington Post. Communication with those who either are the face of the agency or defend the agency is an important element of the FOIA process.

This communication can be done in a number of ways - and should not add the element of further review of the actual FOIA documents. This does not suggest that agency personnel with subject matter expertise should not be contacted about FOIA requests in their areas of expertise - those outside of the FOIA office, who have nothing to do with the subject matter area should not be involved in release decisions.

I recommend a list (it can be weekly or daily) telling those with a need to know at agencies of high profile FOIA requests. This list can describe the requests, the status and what is being released. This allows those who need to have the information to not be sandbagged - and allows the FOIA office to process the request without any political or bureaucratic interference.