You don't need a report title to file a FOIA request


Paeans to the Freedom of Information Act are rightly common, since FOIA in law and in practice distinguishes American democracy as exceptionally open. We just don't elect political leaders; we have the ability to gain access to the stuff of governance internal to the federal government, with no justification other than curiosity required. Limitations--still too constrictive to my mind--apply, but nonetheless FOIA is a laudable tool for transparency and openness.

Our ability to file FOIA requests is important; when government accountability is limited to just elections, governance suffers, since politics and governance are hardly identical. Politics sometimes does influence governance for the better, however, as with the Obama administration's declaration of a presumption of openness in FOIA requests.

But, in a demonstration of why federal openness about its internal workings is important, there increasingly is a collection of anecdotal evidence that suggests the policy is failing to take hold across the federal government.

For example, agencies responding to FOIA requests with statements that without the title of a requested document, or the contract number for a requested contract, they cannot proceed. It's a response that may have become increasingly common over the past year as agencies have responded to administration pressure to reduce their FOIA backlog.

Such responses, it should go without saying, go beyond what current law requires of requestors. The FOIA statute, in 5 U.S.C. Section 552(a)(3)(A) specifies that a record must be "reasonably" described, but does not set up the title of the document as the standard by which reasonableness is determined.

In fact, House Report 93-876 (.pdf), which accompanied passage of the 1974 amendments to FOIA, states that a "specific title or file number cannot be the only requirement of an agency for the identification of documents." The report also states that "A 'description' of a requested document would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort."

What might be occurring, in other words, is agencies are responding to FOIA requests with a demand for greater specificity that's not required by law, in the half-conscious desire that requestors will fail to properly respond within the allotted time period--permitting the agency to put the request away and report it as a case of "no records."

According to Justice Department-compiled statistics about federalwide handling of FOIA requests, 13 percent of FOIA requests in the last fiscal year were met with a response of "no records." How many of those responses are a legitimate finding of no records versus evidence of backhanded attempts to reduce the backlog is impossible to say; it suggests a need for greater detail in collecting metrics about FOIA requests.

It also illustrates why FOIA itself is so important; it's easy for politicians to make promises or even to sign policy that vows execution of those promises. Far harder is actual execution, which butts up against things such as agencies responding to FOIA backlog reduction demands by possibly subverting the spirit of the law itself--only appearing to carry out policy, in other words.

It also might suggest that the FOIA process itself might be in need of some FOIA-induced transparency. In fact, the National Security Archives at George Washington University did just that earlier this year, concluding that only about half of agencies have updated their FOIA guidance and training with the "presumption in favor of disclosure" called for by President Barack Obama.

Magnify what ails FOIA right now across the plethora of policies that the federal government is in charge of executing and you get the best illustration possible for why FOIA is both laudable and necessary. - Dave