Secrecy News

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.

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

  1. This is in response to Steve’s comments about the FOIA. He certainly pinpoints a problem that I worried about during the many years when I was the House staff guy responsible for the FOIA. In the 1980s, there was one person then who filed so many FOIA requests at the FBI that he was a huge percentage of the backlog. I was afraid that there would be a backlash to that, but the FBI never raised it, even during the FOIA-challenged years of the first Reagan Administration.

    Addressing the problem on the appropriations side is not a solution. People in the FOIA community have asked for years for a line item for FOIA so that there would be resources available. I fought that all the time. Here’s what would happen. Money would be provided in year one. In year two, the agency would ask that the line item be zeroed out, and it would then say that Congress denied it the funds to respond to requests. The courts would likely buy the argument, and that would be the end of the law.

    There are filing fees in some other countries. I’m not thrilled with the idea, as you have to deal with prisoners and the poor. A ten dollar fee isn’t the worst idea in the world, but there’s really no one who cares about FOIA who would propose or support it. I don’t know if it would really help anyway, and a bigger fee would be very controversial.

    Other methods of regulating requesters can be envisioned, but agencies will happily spend whatever it takes to “qualify” requesters. Are you the same as or related to the other person who asked for similar information. Prove that you aren’t before we process your request. The correspondence would go on forever, and there would be litigation about it. Whether allowing any of this would be cost effective is unknown. I once asked GAO if it could develop a cost accounting system for FOIA, and the (informal) answer was that the accounting system would cost as much to administer as the FOIA.

    My cute idea from years ago was to make agencies pay their own litigation costs. But that doesn’t really work and isn’t fair. What happens if Agency X doesn’t have the funds to pay to protect your privacy or trade secret?

    Requester discretion is something that could use more attention, but what happens when you get a major story (Hillary’s email), and there is legitimate widespread interest? Judicial Watch is a big requester, but does anyone really want to limit Judicial Watch or other major active public interest requesters? Could we have controls that wouldn’t be easy to evade? Or that wouldn’t make the problem worse as I suggest above?

    There may be softer ways to handle some of it. Perhaps put multiple requests by the same requester in a personal queue? Agencies may effectively do this anyway.

    I remember an old story from a FOIA officer at HHS. They were getting a lot of requests from a particular individual. It took a lot of resources to respond. They finally called him, talked to his mother, and learned that the requester was liked getting mail, and figured out that using the FOIA got him mail. He really didn’t care about the materials he got. When his mother heard the whole story, the requests stopped. That’s a cute story, not a general solution by any means, but talking to a requester from time to time might help here and there. Talking to the requester can make things better, smoother, and more efficient, but agencies seem reluctant to do it.

    IMHO, the requester community always wants “more”. The community is short sighted in many ways, and its solutions (sometimes enacted) only sometimes make things better. Want to change the time limits? Agencies won’t meet the new standards. Want to change the standards of exemption 5? Fine, but there will be the same fights over the new standards because there are often real policy issues involved, and litigation may end up making things worse or just provide a different grounds for fighting.

    A more interesting question is which any of the past FOIA reforms actually made the law better and which did not. I think it’s been a mixed bag. I’m not arguing that the law is perfect, or that amendments can’t help sometimes, but some of the conflicts are inherent and legitimate and will not be avoided entirely by fiddling with the words in the law. There is no magic bullet to solve FOIA problems.

  2. It is absurd to complain about some infinitesimal number of FOIA requesters whom agencies think are “monopolizing the system” when the real problem is the conscious, deliberate, subversion of the FOIA by the vast majority of agency FOIA employees. There simply is no moral or practical comparison.

    I know someone who has just filed his 6th lawsuit against the FBI (his previous 5 lawsuits were successful) — because the FBI as an agency has nothing but contempt for both the spirit and the letter of FOIA legislation.

    Until we criminalize the behavior of career bureaucrats who do everything possible to thwart, delay, and subvert FOIA requests, there will NEVER be any significant improvement in FOIA processing.

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