FOIA Facts: The Congressional Role in FOIA Operations

Recently, the President's proposed budget sent to Congress received a great deal of news for the insertion of his proposal to send the FOIA Ombudsman's Office from the National Archives and Records Administration (NARA) to the Department of Justice. As this was clearly not the intent of Congress in establishing the Ombudsman's Office in NARA only weeks prior, Congress and others criticized this proposal and it will likely be rejected when the budget for FY2009 is passed at some point in the future.

I believe, however, that this exercise illustrates the problems of FOIA Operations that are not truly dealt with by those in the pro-FOIA community, including the Congress. (And yes, I believe there is an anti-FOIA community, which is basically made up of those who want to thwart the release of government documents because they feel the public doesn't actually have a right to know what the government is up to. I won't name names, but you can guess who they are.) The problem is more than just money, but money is a major part of the problem that the new FOIA law does not deal with. And that is where I believe there is a larger role in FOIA Operations that need to be played by Congress - a role that is more than just passing a FOIA law once every decade.

In fact, money is the number one problem to FOIA Operations. There is no direct line item for agency FOIA operations. FOIA managers must basically beg, borrow and steal from their agency budget officers to get staffing for their offices-even though the FOIA is required in the law. The result is very few agencies adequately staff their FOIA Operations. One may ask, how one knows if a FOIA Operations is adequately staffed. I believe issue is if the agency has a FOIA backlog greater than 1-2% of its number of annual FOIA request, then, yes, the agency needs more funding.

Last year, I wrote a column in Access Reports (subscription required) that said Congress should specifically appropriate funds for FOIA Operations. Robert Gellman, a former Hill staffer, wrote an article in opposition to that, stating agencies would take the money and play games with it, and in the end, it wouldn't go to FOIA Operations. As I am not in expert in budgets and appropriations, I can't argue with Mr. Gellman's points. However, I think the answer to the money problem, and any other problem with FOIA Operations, is real Congressional oversight - something that is sorely lacking in the FOIA process.

I can't remember the last time there have been real Congressional hearings on FOIA. I don't mean dog and pony shows where the Department of Justice sends up someone to make a statement, a Congressperson asks a (sometime pointed) question, and the DOJ person agrees. Everyone goes home and nothing changes. What I propose is a real hearing, one in which congressional staffers review agency performance, and then call up the FOIA Officer and a higher level appointee to answer questions about the performance. For instance, I have a number of requests into a Health and Human Services component, the Center for Medicare and Medicaid Services. Some of these requests have sat for three years - and I'm told I'm not the only one. Processors have huge numbers of requests assigned to them at any one time. Why doesn't Congress call the FOIA Officer and his/her supervisors to testify to these delays and ask why no money has been appropriated for adequate FOIA Operations? One thing I've learned is that no bureaucrat or political appointee wants to have to answer tough questions in front of a microphone on Capital Hill. (And now, thanks to technological innovations, most hearings are taped, and archived for podcasting on the internet). Once a few of these hearings have happened, I am willing to bet that FOIA Operations become better funded, by both the agencies themselves and through Congressional intervention.

Congress can't just pass a law and then later on complain about its failure to be properly implemented by the administration. Now that it passed yet another FOIA law [the OPEN Government Act of 2007], Congress must actively use its oversight role in seeing that the new FOIA law, and the FOIA and other disclosure laws that are already on the books are actively followed and funded.