The Obama administration is seeking to use technology to better support the Freedom of Information Act (FOIA) system. The effort could improve access to government information, empower Americans, and strengthen democratic accountability.

Background

Fifteen years after the Electronic Freedom of Information Act Amendments (E-FOIA) were signed into law in October 1996, the law's vision of technology improving public access to government information is still under construction. Here are the elements envisioned:

Proactive Disclosure: Although typically considered a request-and-response system, FOIA has almost always required the proactive disclosure of some information. Seizing on new technology to broaden public access, E-FOIA expanded the information that agencies are required to proactively disclose and required agencies to post such information on their websites.

E-FOIA thus began to move the FOIA system toward greater proactive disclosure, shifting government toward more effectively and efficiently embodying openness. President Bill Clinton embraced this shift in his signing statement, noting, "As the Government actively disseminates more information, I hope that there will be less need to use FOIA to obtain government information."

Despite fifteen years of intense technological progress since E-FOIA, however, Congress has not updated the proactive disclosure standards. In addition, compliance has fallen short, as noted in a 2002 General Accounting Office (now the Government Accountability Office) study and a 2007 National Security Archive survey. As a result, vital opportunities to bolster openness through proactive disclosure have been missed.

Requests and Processing: Although Clinton hoped that proactive disclosure would lessen the need for FOIA requests, processing public requests for information remains an essential tool for democratic accountability. But an effective FOIA system can be undermined by confusing and unhelpful customer service, as well as long delays collecting information from poorly designed IT systems.

E-FOIA clarified that electronic records, like those on paper, are subject to FOIA. But the law still allows agencies to use IT systems that require expensive and lengthy manual processing in order to make their information available to the public. For example, a recent House Oversight and Government Reform Committee survey found that agency financial systems frequently require manual processing to provide information to other government systems or the public.

Poor technology also often hamstrings requesters' interaction with agencies. For instance, although agencies generally accept requests via e-mail, many do not provide a web form for requests. Such forms could make filing and processing requests much easier. In addition, while the OPEN Government Act of 2007 required agencies to assign tracking numbers to requests, most agencies do not provide an automated system to check the status of a request using such information. As a result, requesters often have to wait days for a manual reply to their status inquiry.

New initiatives

On Sept. 6, the Department of Justice's Office of Information Policy (OIP) announced that it would focus on using technology to strengthen the FOIA system. OIP oversees FOIA administration across the government.

Specifically, OIP announced that it would convene a technology working group in fiscal year 2012, which begins Oct. 1, to focus on improving FOIA processing, such as document searches, reviews, and consultation between offices.

The OIP working group could complement the efforts of the Office of Government Information Services (OGIS) within the National Archives and Records Administration. OGIS, which was created in 2007 by the OPEN Government Act, has focused on improving the experience of FOIA requestors. As a result, OGIS has developed a set of best practices for agencies to follow in their FOIA implementation, most recently published in February. Many of the best practices involve more effectively using technology to expand proactive disclosure and improve customer service.

The OGIS best practices include:

• Establishing categories of records that can be proactively disclosed regularly
• Posting online documents that have been released under FOIA
• Posting a case log online that allows requesters to search by tracking number to see their status
• Posting more information online about the agency's FOIA process, such as the agency's FOIA regulations, contact information for the agency's public liaison, and information about the requestor services offered by OGIS
• Communicating with requesters by e-mail or phone where it would be more efficient than mail

In addition, the administration has repeatedly emphasized the importance of proactive disclosure. For example, in March, the White House announced that it would require agencies to post their staff directories online, as well as their congressional testimony and reports to Congress. Unfortunately, a July audit by OpenTheGovernment.org found that most agencies had not yet done so.

Finally, the administration's in-progress reform of federal websites policy could support improvements. In August, the White House asked for feedback on revising a 2004 Office of Management and Budget (OMB) memo that establishes information to be included on federal websites. In response, OMB Watch recommended significantly expanding the categories of information to be disclosed from those currently listed in the memo. OMB Watch's comments also recommended that agencies allow the public to submit and track FOIA requests, and to receive responses, online.

Further recommendations

The OIP working group should solicit ideas on improving the FOIA system from the public. In addition, the OIP working group should consult with the intergovernmental Open Government Working Group.

In addition to developing short-term guidance to agencies, the OIP working group should address the longer-term question of how IT systems facilitate or impede FOIA. In recent comments on the administration's Open Government Partnership national plan, OMB Watch called for agencies to consider full-circle transparency, including responding to FOIA requests, in making IT investments. More thoughtful planning up front in the design of IT systems could save enormous amounts of staff time if systems were designed with a presumption of automatic disclosure. The OIP working group should begin to consider this topic, along with the Federal Chief Information Officers Council and the Federal Records Council. With a good, long-term IT strategy, the effectiveness and efficiency of the FOIA system could easily be transformed.

Agencies should comply with the OGIS best practices. Additionally, agencies should revise their FOIA regulations to embrace greater use of technology to improve customer service and expand proactive disclosure.

Finally, OIP should update its reporting guidelines to agencies in order to better assess the use of technology in the FOIA system, including compliance with the OGIS best practices.