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FOIA Facts: Suggestions for FOIA Amendments

By Scott A. Hodes, Published on March 18, 2007

Soon there will be legislation proposed to amend the Freedom of Information Act (FOIA).

[Editor's note: Bill Summary: The Freedom of Information Act Amendments of 2007 and Subcommittee on Information Policy, Census, and National Archives hearing on The State of FOIA: Assessing Agency Efforts to Meet FOIA Requirements, Wednesday, February 14, 2007 - see this related posting for further information.  See also this March 15, 2007 posting, House Oversight Chairman Waxman Applauds Passage of Open Government Bills.]

I believe the FOIA needs amending. Here are my suggestions:

1. This may not be within the confines of the FOIA itself, but I believe Congress should directly appropriate money for agency FOIA operations. FOIA is a mandatory agency activity. However, agencies are not required to fund the FOIA to the point that all requests are processed within the statutory mandated times. In fact, if given the choice between fully staffing a FOIA Office and another agency office, agencies will staff the FOIA offices second. Quite frankly, this is because government officials, despite what they may say on the record, do not like the FOIA and do not want to make it easier for requesters to get information. In my opinion, agencies don’t mind if individuals have to wait a while to get their requests processed. Thus, I believe Congress should specifically allocate funds for FOIA operations and agencies should have to report on their spending of these funds in their annual FOIA reports.

2. For six years at the Department of Justice’s Office of Information and Privacy, I was the Exemption 5 expert. This experience, along with my observations in private practice, leads me to believe that the deliberative process privilege should be abolished, or at the very least made temporal. The justification for this exemption is that it would chill agency deliberations if staff knew that their suggestions would be made public. FOIA is about learning what government is up to. The public should be able to know, at the very least, after a short time period, what staff was recommending. Current law allows those recommendations to be kept private forever.

I should point out the FOIA policy implemented by Janet Reno, allowed for agencies to make discretionary disclosure of this type of information. I don’t think the release of otherwise deliberative information was harmful to anyone—and I believe it was good for the public. Thus, at the very least, Congress should add a foreseeable harm standard to the FOIA itself.

3. Most agencies don’t meet the statutory time limits. If a case goes to litigation, they seek a stay. I would make it tougher to get that stay. In fact, I would make the statutory time limits more specific, adding different time periods for the amount of material responsive to requests. Agencies should have more time to process 1,000 pages of documents than they do 50—legislation should say that. But, then agencies that don’t meet the time limits should in some way be penalized. [Editor's note: see GAO Report on Freedom of Information Act Processing Trends]

4. Attorney fees should be easier to get and should come out of the pockets of the agency sued. Currently, if you sue the government and they then give up the documents, you don’t get attorney fees unless the release was caused by a Judge's opinion. This makes it in the interests of the agencies to force lawsuits. And if attorney fees are awarded, they come out of fund from the Department of Justice. There is no repercussion on the agency. This should be changed.

Basically, all of my suggestions come down to agency accountability. If agencies are held accountable for their failures in FOIA operations then they will improve FOIA operations. For further information on FOIA legislation and all other FOIA news at my blog.