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FOIA Facts: Dear Attorney General Gonzales

By Scott A. Hodes, Published on August 18, 2005

Dear Attorney General Gonzales:

It was refreshing to hear your comments to the Associated Press last month, in which you stated that you are reconsidering your predecessor’s guidance restricting public access to information under the FOIA.

In that spirit, I write to you with some opinions on what I believe should be in your revised policy. As a former government FOIA attorney, I am more than aware of the impossibility of just releasing every scrap of paper and byte of electronic information in government files. There are loads of reasons for validly withholding information and I acknowledge that fact. I also state that many who write about your predecessor’s policy link that policy to 9/11. As almost every new administration revises its predecessor’s FOIA policies, I believe that the fact that the Ashcraft policy was in the works before 9/11 and would have been handed down even if the attacks had not occurred.

In my opinion, the policy of the previous administration, to release anything that would not cause foreseeable harm even if it is arguably withholdable under the FOIA was a good policy. I strongly urge that you reinstate it, and then follow through by actually allowing Department of Justice attorneys to not defend lawsuits where the information fits that category.

However, I do not believe you should stop there in crafting your FOIA policy. Much of the public’s unhappiness has very little to do with the release decisions made in the FOIA process. As an attorney dealing with FOIA matters and someone who speaks with many FOIA requesters, I can tell you the failure for agencies to adequately communicate with FOIA requesters on a timely basis is the single biggest frustration that people have with the FOIA.

I know for a fact that many lawsuits are brought, not because of a denial of the request, but because the agencies have failed to communicate with the requesters on a timely basis on where the request is in the FOIA process. FOIA requesters are by and large, reasonable people. A short e-mail or note telling the requester where the request is and why there has been a delay is enough to keep people somewhat happy. While some agencies are very good at doing this, many are not. In fact, one of Senator Cornyn’s proposals is a database for requesters to be able to track where their FOIA requests are in the system. I urge you to not wait for this legislation to occur and to develop either a database yourself, or to issue guidance for agencies to contact requesters on a thirty day cycle telling them where the request is.

While I have many other tedious comments to improved FOIA processing and releases, I won’t bore you with them all. While any improvements in the FOIA system will cost money initially, I do believe that money will be saved by decreased litigation costs over the long run.

Thank you for your time. If you wish to discuss my views on FOIA further, feel free to contact me.

[Editor's Note: The Coalition of Journalists for Open Government has issued two new reports, one of which addresses overall federal agency responses to FOIA requests, and the second which provides a review of FOIA litigation decisions during the period of 1999 through 2004.  The text of the reports are available in one document, 14 pages, PDF.]