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March 28, 2012

When Is A FOIA Portal Not A FOIA Portal?

By Anne L. Weismann

Federal Agencies, Department of Justice, Environmental Protection Agency (EPA), FOIA, Transparency, Open Government

CREW, like many other openness advocates, has welcomed the development of a FOIA portal by the Environmental Protection Agency, in partnership with the Commerce Department and the National Archives and Records Administration. Intended to provide a one-stop shop for submitting FOIA requests and uniformity in the FOIA process, the FOIA portal also will provide a central place to find records already released by agencies, and make it easier for agencies to manage their own FOIA processes. So what’s not to like?

That is a question better asked of the Department of Justice’s Office of Information Policy (OIP), which has directed considerable energy toward duplicating, but in name only, some of the EPA portal’s features, and explaining why its FOIA.gov website is the better choice. Things reached a climax of sorts last week, when OIP Director Melanie Pustay testified before the technology subcommittee of the House Government and Oversight Committee. In testimony described as “combative,” Ms. Pustay clung to the notion FOIA.gov, which provides hyperlinks to federal agencies’ web pages, is the equivalent of a FOIA portal. She then declared success on this front, made clear DOJ’s work was done, and refused to answer a question about why DOJ was not, instead, working with EPA to develop a true, government-wide FOIA portal.

As a number of us in the access community have been trying to explain to DOJ and other government officials for some time, FOIA.gov and the EPA FOIA Portal are two very different things. While each provides a valuable service, they decidedly are not interchangeable. Using FOIA.gov still will require a requester to submit FOIA requests individually to each recipient agency, following the individual formats each agency requires. And FOIA.gov will not house all of the documents agencies already have released under the FOIA. By contrast, EPA’s FOIA portal will provide a uniform way to submit a request of uniform format following one procedure to one central place, where it will be distributed to the appropriate agencies and agency components. Moreover, the FOIA Portal will house all documents released under the FOIA, reducing the number of unnecessary, duplicate requests.

Read: CREW and Other Groups Reaffirm Committment to FOIA Portal

Given the obvious benefits of EPA’s FOIA portal, one has to ask why DOJ is attempting to compete in the same space. Something else DOJ did last week may reveal the answer to this question. On March 19, 2012, DOJ published a Privacy Act System of Records notice covering, among other things, “records related to requests for OIP to serve as Ombudsman in disputes between federal agencies and individuals who submit FOIA requests . . .” OIP as FOIA ombudsman – isn’t that the role Congress legislated for NARA’s Office of Government Information Services (OGIS)? Sure is, and Congress made clear that was a role OGIS enjoyed to the exclusion of DOJ to ensure the ombudsman was “free from the influence of the Federal agency that litigates FOIA disputes – the Department of Justice.” [Congressional Record: February 14, 2008 (Senate), pg. S1050-S1051]. Which leads to the question when is a FOIA ombudsman not a FOIA ombudsman?

Could all this simply be a naked power grab by an agency attempting to protect its turf? There may be a far more innocent explanation, but I haven’t seen it yet.

This post was updated 3.29.12

After posting this blog, the Department of Justice reached out to us with two official statements which address some of our concerns. Here are the the DOJ's statements in full:

Department Statement on FOIA SORN:

The Office of Information Policy’s (OIP) statutory responsibilities include ensuring that agencies are properly complying with the FOIA. When concerns are brought to OIP's attention regarding compliance, OIP will look into the matter. Since the 1980s when responding to these inquiries, OIP has used the term "ombudsman.” This term was used in the department's recently issued update to its System of Records Notice for Freedom of Information Act files. To more accurately denote the type of files at issue, the department will amend its notice and refer to the files as "compliance inquiries."

The numbers of compliance inquiries handled each year are reported in the FOIA Litigation and Compliance Report. For example, in 2010 seventeen inquiries were received. In 2009 thirteen inquiries were received. While those inquiries make up only a tiny fraction of the work OIP does, a description of the files was included in the proposed system notice, using the long-established name used internally work on these inquiries.

The Office of Information Policy does not engage in mediation, which is a function assigned by statute to the Office of Government Information Services (OGIS). Indeed, OIP advises thousands of FOIA requesters each year of the availability of mediation services at OGIS.

One of the reasons OIP is updating its system of records notice is to include a provision that will facilitate disclosure of FOIA request files to the Office of Government Information Services (OGIS). In the course of adding that provision to the notice, the department also updated other elements and in doing so included a description of its files concerning compliance inquiries. We believe that denoting these files as "compliance inquiries" will be clearer to the public. The work the Office of Information Policy does in responding to these inquiries is for the overall benefit of FOIA administration and is fully in keeping with their statutory responsibilities.

Melanie Anne Pustay Statement:

“The goal of the Attorney General’s FOIA Guidelines is to apply the presumption of openness in an effective and efficient way to provide for improved transparency. In the Attorney General’s FOIA Guidelines all agencies were directed to look for ways to increase efficiencies and to explore greater use of technology to improve the FOIA process.

The Office of Information Policy (OIP) supports all agencies’ efforts to further that directive. To facilitate that process OIP has convened an inter-agency working group on technology to provide agencies with a forum to share information about the wide variety of ways in which technology can be used to improve the FOIA process. OIP is also working individually with EPA as it is developing its FOIA module and looks forward to seeing the project develop. All innovations in FOIA administration, big and small, are welcome. “