Category Archives: Freedom of Information

FoIA in the age of “Open. Gov”: An analysis of the performance of the Freedom of Information Act under the Obama and Bush administrations

Source: Ben Wasike, Government Information Quarterly, In Press, May 21, 2016
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From the abstract:
This study used five standard Department of Justice FoIA parameters to analyze and compare FoIA performance between the Obama and Bush administrations in terms of: efficiency, disposition, type of exemptions, redress and staff workload. Results indicate that while efficiency is higher under Obama, agencies are releasing information only in part. While appeals were processed faster under Bush, petitioners have had more success under Obama. Additionally, FoIA staff workload has dramatically reduced under Obama. One notable finding was that contrary to popular media outcry, neither administration evoked national security and law enforcement exemptions as much as has been widely claimed. Legacy and commonality were also findings indicating that certain trends transcend the incumbent. Implications to government transparency and pertinent issues are discussed within.

Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis

Source: Wendy Ginsberg, Congressional Research Service, CRS Report, R43924, April 21, 2016

Congress is currently considering legislation that would make substantive changes to the Freedom of Information Act (FOIA). FOIA was originally enacted in 1966 and has been amended numerous times since —most recently in 2009. FOIA provides the public with a presumptive right to access agency records, limited by nine exemptions that allow agencies to withhold certain types or categories of records.

The legislation under consideration in the 114th Congress, S. 337 and H.R. 653, is largely based on bills from the 113th Congress, S. 2520 and H.R. 1211. Both of the bills in the current Congress seek to amend a number of provisions of FOIA for the purpose of increasing public access —including improving electronic accessibility of agency records, clarifying the right to request information related to intra- and inter-agency memoranda or letters, standardizing the use of search and duplication fees by agencies, and requiring agencies to notify requestors of the status of their requests and of the availability of dispute resolution processes for requests that they believe have been inappropriately denied. Both bills would also create a Chief FOIA Officers Council, responsible for informing government-wide FOIA administrators of best practices, and would establish new FOIA-related oversight responsibilities and reporting requirements. ….

…..This report provides a side-by-side comparison of the bills, using the versions that have passed each of their originating congressional chambers. The report also provides context related to bill amendments and language additions that occurred between bill versions, when applicable. Finally, the report provides analysis of certain provisions of the bills. …..

Access to Government Information In the United States: A Primer

Source: Wendy Ginsberg, Michael Greene, Congressional Research Service, CRS Report for Congress, 97-71, March 18, 2016

No provision in the U.S. Constitution expressly establishes a procedure for public access to government records or meetings. Congress, however, has legislated various public access laws.

Among these laws are two records access statutes,
• the Freedom of Information Act (FOI Act or FOIA; 5 U.S.C. §552), and
• the Privacy Act (5 U.S.C. §552a),
and two meetings access statutes,
• the Federal Advisory Committee Act (FACA; 5 U.S.C. App.), and
• the Government in the Sunshine Act (5 U.S.C. §552b).

These four laws provide the foundation for access to executive branch information in the American federal government. …. This report offers an introduction to the four access laws and provides citations to additional resources related to these statutes. This report includes statistics on the use of FOIA and FACA and on litigation related to FOIA. ….

FOIA Mapper

Source: Max Galka, FOIA Mapper, 2016

Q&A:
What is FOIA and what role does FOIA Mapper play?

Browse by Government Agency:
FOIA logs, record systems, and contact information for making a Freedom of Information request

Find the Data:
Search for government information by keyword or see what other people and news organizations are requesting

From About:
The FOIA dilemma – what can I ask for and how do I ask for it?
Making a Freedom of Information Request is a burdensome process that may involve days or even weeks of work to identify what records are available and enough information about how they are stored to property phrase the request.
Government agencies are required to disclose a list of their “Major Information Systems.” However, this data represents only a small fraction of the universe of public information accessible via Freedom of Information.
For most government record systems, identifying them typically requires scouring an agency’s website for pages relating to the topic, in the hope to finding small clues to help you infer or make educated guesses about what information an agency may have.

The Solution
Since first discovering FOIA a few years ago, I have made hundreds of Freedom of Information requests across a wide range of topics. And in that time, I have learned a few ways of identifying these hidden record systems.
In some cases, information about these record systems can be inferred from online documents (for example: public RFP documents, Federal Register notices). In other cases, information about record systems can itself be obtained via FOIA (for example: database relational schema, lists of FOIA requests made by other people).
FOIA Mapper compiles this information into a centralized catalog of government records, searchable by topic.

US gov’t sets record for failures to find files when asked

Source: Ted Bridis, Jack Gillum, Associated Press, March 18, 2016

…. In more than one in six cases, or 129,825 times, government searchers said they came up empty-handed last year. Such cases contributed to an alarming measurement: People who asked for records under the law received censored files or nothing in 77 percent of requests, also a record. In the first full year after President Barack Obama’s election, that figure was only 65 percent of cases. ….

State Legal Information Census: An Analysis of Primary State Legal Information

Source: Sarah Glassmeyer, LLRX, February 21, 2016

This report presents findings from a survey of state level primary legal information. Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions). This survey was done with the goal of reviewing the free and open status of this legal information.

Findings:
Findings indicate that there exist at least 14 barriers to accessing legal information. These barriers exist for both the individual user of a resource for personal research as well as an institutional user that would seek to republish or transform the information. Details about the types of barriers and the quantity of their existence can be found under “Barriers to Access.” At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources. Current collections allow for citation retrieval and some basic keyword searching. No state allows for federated searching of legal information collections. The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon. There is also a worrisome lack of archival material maintained by states. Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices. On a scale of 0 – 24, the highest score achieved was 18. The lowest was 8 and the median was 14. These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.

FOIA, Inc.

Source: Margaret B. Kwoka, University of Denver Legal Studies Research Paper No. 15-57, November 2, 2015

From the abstract:
Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities. No actors are more central to the design than journalists, who were not only the prime intended users, but who were intimately involved in crafting the law itself. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial — not public — interests dominate the landscape of FOIA requesters.

This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It uses these agencies as case studies to examine the way that businesses derive profit-making value from free or low-cost federal records. Remarkably, these datasets also reveal a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit. Information resellers are not isolated occurrences, but rather are some of the most frequent FOIA requesters — often submitting hundreds or even thousands of requests a year — at a variety of federal agencies.

Commercial users certainly have legitimate information needs, but, as this Article demonstrates, the volume and character of the current commercial use of FOIA undermines its efficacy as a transparency tool. Private businesses in essence receive a substantial subsidy without any corresponding public good, all while draining agency resources that might otherwise be used to respond to FOIA requests that serve its central oversight and accountability aims. Moreover, information resellers have become the de facto locus for federal records for whole industries, effectively privatizing an important public function.

Counter-intuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are routinely the subject of FOIA requests — a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.

State Integrity 2015

Source: Center for Public Integrity, November 2015

The State Integrity Investigation is a comprehensive assessment of state government accountability and transparency. The project uses extensive research by reporters in each state to grade and rank the states based on existing laws and analysis of how well they are implemented.
Related:
About the investigation
Our scorecard methodology
Only three states score higher than D+ in State Integrity Investigation; 11 flunk
How does your state rank for integrity?