In the current Congress, there are bills pending that would create a commission to come up with ideas for faster FOIA processing. Readers of my blog know that I have been critical of this bill as yet another way to delay any FOIA reform. I’ve argued that there are plenty of ideas already currently floating out there. I believe taking those ideas, along with a few days of congressional oversight hearings to solicit other opinions, could give Congress plenty of fodder to create an actual bill that would implement faster FOIA processing now rather than wait for a “commission” to come up with these same ideas.
So putting my money where my mouth is, I have presented ideas to create faster FOIA processing in FOIA agencies. I’ve presented these in a series of four posts on my blog, but I’m condensing and updating them here in one article.
Idea Number 1
Many times FOIA analysts tell me that the reason my request is not yet completed is that they haven’t received the documents from the program office that created the material. This leads me to my first idea for the faster processing of FOIA requests.
FOIA Offices must be given direct access to all records within the agency that they are responsible for processing. This means they must be able to download electronic records directly from their computers – not rely on a program office employee to do this and forward the document(s) to them. Further, they must be able to go to a program office and get responsive files without waiting for a program office to do this task for them.
This small requirement would, I believe, improve the time it takes to process FOIA requests, at a number of agencies. Some have commented that those who control the documents wouldn’t be happy with this. However, many agencies already operate this way. Secondly, those who control the documents aren’t usually trained in FOIA – their opinions should be taken into consideration, but the ultimate agency should be deferred to those with FOIA expertise.
Idea Number 2
I take no credit for this idea; it’s been around for a long time. All government employees’ performance ratings should have to take into account their performance on the FOIA. Non-FOIA employees should be rated on their cooperation with the FOIA office, their response times in getting documents to the FOIA office (see Idea number 1), and any other FOIA related matters they work on. If they didn’t do any FOIA work during the year, this factor would simply not be taken into account.
This is important in that, as I stated in Idea 1, FOIA offices do not operate in a vacuum. They rely on program offices to get the documents and answer questions about those documents for processing purposes. When the program offices do not put these inquiries on the top of their to-do pile, FOIA requests languish in backlogs. Thus, the more the program offices cooperate with FOIA offices, the quicker processing will go.
Idea Number 3
This one is for the long term, and the idea is to create government employees who specialize in the FOIA by creating a OPM job classification for FOIA analyst. Again, I take no credit for the idea; it has been around for a long time and proposed by many.
Many who read my blog work in the government processing FOIA requests. However, this job classification is not “FOIA analyst.” It may be paralegal, attorney-advisor, or some other job classification. By creating a specific FOIA job classification, the government could hire someone at a certain grade level and allow them to rise to a top level, you would create a body of people who, over their federal careers understand and know how to deal with FOIA issues.(I believe they should be able to go to GS-15 with the appropriate experience and education, and eventually qualify for any of the SES FOIA positions that are out there). This would allow those who want to make the FOIA a career to be able to stay in FOIA positions in order to advance.
I know a lot of people will say that those who have been in FOIA their entire careers have been promoted. However, not all agencies do that – additionally by having a FOIA career track able and trained employees should theoretically move easier to different agencies.
Idea Number 4
Processing FOIA requests can be complex. One way to simplify processing is to have black and white rules about what can and cannot be released.
I propose time limits on deliberative materials. For example, documents can no longer be withheld after ten years even if they contain material that is arguably withholdable under the deliberative process privilege.
Additionally, how about making the FBI’s 100 year rule the standard across the board.The FBI routinely releases the identities of individual’s 100 years after their date of birth, regardless of whether or not they can find a death notice. I propose making this a rule for every agency.
These are just some ideas. I’m sure there are others. I’m sure that a congressional commission is not necessary to get them and put them into law.