Tech hasn't fixed FOIA yet

Transparency advocates are pushing Congress to go after agencies for shoddy responses to the sunshine law.

Shutterstock image: government access keyboard.

When it comes to government transparency, technology should have made things more open and simple, but that hasn't been the case.

The Freedom of Information Act "has become a tool of secrecy, not transparency," said David Cuillier, director of the University of Arizona's School of Journalism. "Agencies are gaming the system."

Cuillier and other witnesses told the Senate Judiciary Committee on July 12 that instead of quick replies, proactive disclosure and openness, agencies hide behind extensions while claiming that tracking down records is exceedingly time-consuming, and they heavily redact documents or deny requests.

The House has also investigated FOIA responses, with one committee declaring the process broken earlier this year.

The technology to help exists.

"Managing complex logistics is possible," said Rick Blum, director of the Sunshine in Government Initiative.

He pointed to Amazon's inventory cataloging as an example of a technology-powered organizational tool that the government could emulate to better respond to FOIA requests.

"Digital storage and retrieval should speed government responses, not complicate and slow it down," Blum said. "Congress should reconsider the way the government captures, organizes and stores electronic information so disclosure is built in at the front end, not the back end."

"As times change and technologies evolve, so too must our transparency laws," said Sen. Patrick Leahy (D-Vt.). "Agencies have yet to develop best practices to make FOIA as responsive to the American people as possible."

One push that could help speed FOIA turnarounds is the establishment of electronic email record management systems across the federal government. It is due to be completed by the end of the year.

President Barack Obama gave openness another boost by signing the FOIA Improvement Act, which Leahy co-sponsored, into law last month. That act calls for the creation of a single, consolidated FOIA request portal.

"Having a single entry point, and having people in the government who know where the records are get them to the right place, is a good start," said Miriam Nisbet, director of the Office of Government Information Services at the National Archives and Records Administration.

But technology will only take the spirit of FOIA so far, experts say.

Agencies must proactively disclose information to cut down on the number of FOIA requests, especially those filed en masse by companies that turn around and broker the information for profit, said Margaret Kwoka, an assistant professor at the University of Denver's Sturm College of Law.

She also said Congress should force agencies to publish their FOIA logs to promote "transparency about the transparency process itself."

Above all, FOIA needs teeth, Cuillier said.

Even as Sen. Chuck Grassley (R-Iowa) claimed that FOIA lawsuits have risen 57 percent since 2006, Cuillier noted that agencies don't really fear legal action because they won't face punitive damages. Furthermore, "they know most people aren't going to sue."

Until there are serious repercussions for not complying with FOIA, he added, many requests will continue to go unanswered.