DoD: Some FOIA Requesters “Try to Monopolize the System”

Criticism of the Freedom of Information Act is frequently directed at the way that agencies implement the FOIA process, or the ways that they fail to do so. Requesters complain that responses to requests are delayed, often for years, that exemptions from disclosures are interpreted too broadly or in self-serving ways, and that fee waivers are arbitrarily withheld. It sometimes seems to be necessary to file a lawsuit just in order to get an agency’s attention.

But it turns out that government agencies also have complaints of their own, including what they consider to be abusive behavior by some FOIA requesters.

The latest report from the Department of Defense Chief FOIA Officer notes that some DOD components are “overwhelmed by one or two requesters who try to monopolize the system by filing a large number of requests or submitting disparate requests in groups which require a great deal of administrative time to adjudicate.”

“For instance, one particular requester singlehandedly filed three requests with SOUTHCOM, 53 requests with AFRICOM, 35 requests with SOCOM and 217 requests with OSD/JS [Office of the Secretary of Defense/Joint Staff] for a total of 308 cases this fiscal year alone. For AFRICOM, this represents 43% of their entire incoming requests for the year and 12% for SOCOM. This requester holds over 13% of the currently open and pending requests with OSD/JS and over the past two years has filed 415 initial requests and 54 appeals with this one component,” the 2016 DoD Chief FOIA Officer report said.

One of the marvels of the Freedom of Information Act is that it enables any person to request any government record (more or less) and to compel an agency to respond. But the same asymmetry that allows a private individual to challenge a multi-billion dollar government agency and, with an adequate legal argument, to prevail, also makes it possible to destabilize the system.

In what is arguably a flaw in the legislative drafting of the FOIA, it is entirely permissible for a person to file dozens or hundreds of requests in a matter of days, at little or no cost to himself, and to obligate the government the government to respond to each one. So while the “supply” of government resources to respond to FOIA requests is constrained by agency budgets, the “demand” from requesters is effectively unchecked. The growth of backlogged requests is a predictable consequence. [I myself have more than a dozen requests pending at the Office of Secretary of Defense, though they were filed over a period of years. I don’t recall being charged by DoD for responding to my requests.]

The practice by some individual FOIA requesters of flooding the system not only monopolizes agency attention, it also places more discriminating or occasional requesters at a disadvantage. When those requesters then file lawsuits because an agency has failed to respond, the system is driven further out of alignment.

“As a result of litigation increases over the previous five years, as well as high profile litigation referrals from agencies outside DoD, specifically from State Department concerning former Secretary Clinton’s emails during this reporting period, FOID [the Office of Secretary of Defense FOI Division] has increased resource transfers from the OSD/JS Initial Processing Office to assist LSO [the Litigation Support Office] in execution of court-driven rolling and final FOIA releases,” the DoD Chief FOIA Officer report said.

“This process adversely affects initial request processing which usually leads to more litigation and disgruntled requesters who do not understand why the Requester Service Centers and Public Liaisons cannot provide more satisfactory solutions. Many components report that additional personnel would be beneficial in resolving their backlogs and complex cases but looming budgetary and personnel cuts, particularly in headquarters elements, across DoD do not promise easy or fast resolutions.”

One conceivable response to this state of affairs would be for Congress to ask the Government Accountability Office to estimate the cost of bringing the FOIA process into full compliance with the law, taking into account the current demand from requesters, which dwarfs that of past years. Then Congress could decide either to appropriate that amount of money, or to adjust the requirements of the law to match the available resources. (To address the specific problem of individuals filing vastly disproportionate numbers of requests, one could imagine imposing filing fees or fee recovery procedures for those filing more than a certain number of requests in a given period of time.)

The pending legislation known as the FOIA Improvement Act, which includes several important FOIA policy provisions, does not acknowledge a need for any additional resources to meet the growing demands on FOIA. To the contrary, it says that even the new requirements of the Act, if enacted, “shall be carried out using amounts otherwise authorized or appropriated.”

Update: Author Nick Turse was apparently the FOIA requester that the DoD Chief FOIA Officer had in mind. He presents his perspective here.