FOIA FrustrationBy Scott A. Hodes, Published on December 18, 2013
Once in a great while, a reporter will make a FOIA request and then write about waiting longer than the statutory period for the request to be answered. If the reporter is inclined to believe in conspiracies, the article will no doubt claim that the government doesn’t want the story published and is blocking the release of the information to thwart the reporter. Or the reporter will just use the example of his or her request as an example of how President Obama isn’t living up to his promises of transparency.
While these problems with requests make a great story, they usually aren’t what is happening at the agency level. Recently, I’ve come up against delays and denials that are the result of a combination of poor FOIA training, and most importantly poor management practices at agencies. The first example of this is the structure of the Internal Revenue Service (IRS) and its FOIA appeals process. I’ve had to submit a number of appeals on issues that I believe have been decided incorrectly in the past year. Many of them involve procedural issues such as fee waivers. Here’s the problem – the Office that does FOIA appeals for the IRS is the IRS Appeals Office and the majority of its work is substantive tax matters, FOIA is just a throw in. They rule on FOIA matters by looking at if the decision made by the FOIA Office was proper at the time made, not on any material submitted in the appeal. This practice makes FOIA appeals a waste of time, necessary only to allow for a lawsuit once an appeal is made.
There is no conspiracy in this situation. First, it’s an example of poor FOIA training. The agency may argue that the request hasn’t met the requirements for the fee waiver or other item asked for, however the appeals center on the fact that the agency decision was based on a conclusion that is not supported by the agency. A well trained FOIA office would know how to make a decision supported by both the law and the facts of the individual case. Secondly, it’s an example of terrible agency management. FOIA appeals should be reviewed by FOIA professionals and should be reviewed de novo. Neither is done by the IRS. And this situation allows for the FOIA staff to get away with poor workmanship because the cost of lawsuits deters most requesters from following through on the request.
Another example is requests made to another agency (name withheld to protect the guilty) where the FOIA Office is dictated to by the program office. The program office doesn’t like the requester and thwarts the processing of the request at all costs. This case is the result of poor overall agency management – good management would not only allow for the FOIA office to process requests lawfully, but would also take the program offices conduct into account in all the annual reviews of all of those involved. FOIA Offices must have the ability to follow the law – and top agency management must allow them to do this.
These types of incidents occur to many requesters all of the time. While they can’t always be prevented I believe that two things will help to prevent them. First, increased training for FOIA professionals is a must. Training can be received either through many avenues, but the easiest and most frequent is from either the Department of Justice or the American Society of Access Professionals (ASAP) [please note that I am currently the ASAP President]. Second, all government employees should have responsiveness to FOIA as one of their job responsibilities and should be marked down if they interfere with the FOIA Offices processing of FOIA requests.
So the next time reporters want to blame the President or some other conspiracy for not getting request in a timely manner, they should first take the time to ask about the agency’s FOIA process and whether that may be where the problem really originates. That may indeed be the answer, and an even better story.