FOIA Facts: What Ever Happened to Frequently Requested Material?

If you’ve tried to surf the net and find out what frequently requested information has been posted to agency websites recently, you’ve probably been greatly disappointed. Under the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 5 U.S.C. § 552 (as amended) (“E-FOIA”), agencies are required to post frequently requested FOIA material on their websites. The Department of Justice’s Office of Information and Privacy defines frequently requested information as material that has been the subject of multiple FOIA requests (i.e., two or more additional ones) or, in the agency's best judgment based upon the nature of the records and the types of requests regularly received, are likely to be the subject of multiple requests in the future. [Ed. Note: Scott Hodes worked for OIP from 1991 to 1998.] However, many agencies have been very slow to create and then update pages containing frequently requested information on their websites.

By posting the information on their websites, the theory is that agencies would make the information easily accessible to requesters, allowing them to bypass making FOIA requests to agencies for the information. Further, the theory is that in an electronic age, this would also allow agencies to cut down on the number of paper requests they had to administratively handle, saving them time and money.

A quick tour of agency websites leads one to think that the many agencies of the U.S. Government don't take this aspect of the E-FOIA law seriously. Many agency websites don’t even have a link to "Frequently Requested Material", or FAQs. The agencies that do have the link update the sites infrequently and have very little material on them. Agencies may argue that they are posting frequently requested material on their sites. However, my experience in making requests for clients at various agencies leads me to believe this is not the case. There is a cost to these websites, especially in internet security and server space, however agencies should take this up with Congress. In the meantime agencies should not ignore the law and post frequently requested information on their websites.

Can anything be done to enforce this aspect of the E-FOIA law? There is no agency that can audit and order these websites to be updated. And as information dissemination (especially through the FOIA) is not a priority for this administration, an order from the White House probably won’t be forthcoming. A lawsuit, somehow filed against all the agencies at once, or more likely against each and every agency as a defendant would be time consuming and expensive. Congress could earmark money to agency FOIA websites and use its oversight powers to at least examine if agencies are complying with the law. However, this Congress really doesn’t seem to be interested in these types of issues. Unfortunately for the near future, there may be nothing that can realistically be done to get this very important aspect of the E-FOIA law enforced.