To Fix FOIA, “Best Practices” Will Not Be Enough

Many executive branch agencies have significant backlogs of Freedom of Information Act requests that could be reduced by adopting procedural improvements. And some agencies have made such improvements, a new report from the Government Accountability Office says. Yet substantial backlogs remain.

See Freedom of Information Act: Agencies Are Implementing Requirements but Additional Actions Are Needed, GAO-18-365, June 25.

All of the agencies reviewed had “implemented request tracking systems, and provided training to FOIA personnel.” Most of the agencies had also “provided online access to government information, such as frequently requested records…, designated chief FOIA officers, and… updated their FOIA regulations on time to inform the public of their operations.”

Nevertheless, FOIA is still not functioning well system-wide.

What the GAO report should have said but did not explicitly say is that even if all agencies adopted all of the recommended “best practices” for FOIA processing, they would still face substantial backlogs of unanswered requests.

The simple reason for that is that there is a mismatch between the growing demand from individual FOIA requesters — with 6 million requests filed in the past 9 years — and the resources that are available to satisfy them.

In order to bring the system into some rough alignment, it would be necessary either to increase the amount of agency funding appropriated and allocated for FOIA, or else to regulate the demand from requesters by imposing or increasing fees, limiting the number of requests from individual users, or some other restrictive measure.

None of these steps is appealing and none may be politically feasible. Other than a cursory reference to “available resources,” the GAO report does not address these core issues.

But in the absence of some such move to reconcile the “supply and demand” for FOIA, overall system performance is being degraded and seems unlikely to recover any time soon.

Meanwhile, government agencies have identified no fewer than 237 statutes that they say can be used to withhold information under the Freedom of Information Act, according to the GAO report, which tabulated the statutes. Since 2010, agencies have actually used 75 of those statutes. GAO did not venture an opinion as to whether the exemption statutes were properly and justifiably employed.

Another new report from Open the Government finds that “FOIA lawsuits grew steadily across the government by 57 percent overall for a ten year period, from 2006-15, and increased sharply by 26 percent in FY 2017.”