FOIA Advisory Committee To Act on Inadequate OMB Fee Guidance

The FOIA Advisory Committee’s latest meeting was held on October 20 but video of the meeting has just recently been posted online, over a month since the meeting took place. (Visit here for Part 1 and here for Part 2 of the video. OGIS also live-tweeted the meeting and posted a transcript of the meeting on November 19th.) This delay raises concerns that technical issues are hampering the Committee’s potential influence and stonewalling those not able to attend meetings in person in Washington, DC.

It’s likely that the slow turnaround time by the contractor hired to film and produce the video was caused by 508 compliance issues – which require that federal agencies ensure that persons with disabilities have comparable access to data as persons without disabilities, including video transcripts. If true, it would be sadly ironic, as the Committee has dedicated previous meetings to discussing best practices for eliminating 508 compliance concerns as a barrier to access.

To ensure that future FOIA Advisory Committee meetings are available to the public in real time, it appears that the best solution will be for members of the non-government Open Government community to attend future meetings and use their smart phones to film and broadcast them using Ustream or a similar app. Any volunteers to stream the January 19th meeting?

On to the substantive discussions of the Committee meeting:

One of the major discussions of the October 20 meeting focused on the Office of Management and Budget’s (OMB) FOIA Fee Guidance to all agencies on when and how they can charge fees. The Fee Guidance can be found in the Federal Register and dates from 1987 – well before the Internet Age and agencies’ ability to send FOIA responses via email rather than printed packets of documents sent via posted mail. The guidance is also missing a key word. As the fees subcommittee chairman Jim Hogan notes, the guidance states: “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Is the key missing word “some”, “half,” “most”, or something else? Given the outdated and incomplete guidance, the Committee voted a formal “show of support” to recommend to the Archivist that he advise OMB to update its Fee Guidance. Language for this recommendation will be provided in advance of the January 19, 2016 meeting.

Other highlights from the meeting include the fee subcommittee’s discussion of its survey results. The survey, which asked federal FOIA processors, among other things, what advantages or disadvantages would result from eliminating FOIA fees, was only given to government agencies (ostensibly because “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public). According to the subcommittee’s analysis of the results, “most employees surveyed think that the current fee structure is unfair and time consuming, and prefer a flat fee structure graduated based on volume of the request and category of the requester.” While this may likely be a good sign, some comments by government FOIA professionals implied –and in some cases outright stated– that FOIA fees were useful in deterring requesters from making requests, an action that is illegal.

Committee member and FOIA lawyer Dave Bahr noted that, given the impact of fee issues on requesters who are sometimes forced to withdraw their request or significantly narrow the scope of information they have the right to access, that “It’s very unfortunate that the bureaucratic barriers to asking the requester community are going to leave a very large void of information for the Committee to work with, because the process has been skewed to make it very easy for us to ask the internal FOIA staff their views.” Bahr also underscored that “Even though we’re recovering only 1 percent of the fees, or 1 percent of the cost of producing the information, none of that money, not a single penny is going back to the agencies. In effect, the agencies are spending staff time and money recovering fees that are going in the General Fund and not coming back to them. So it’s a net loss regardless of how much time the agency spends whenever they ask for fees and have to deal with fees.”

In an effort to provide a broader picture of FOIA fees as they affect all sides of the FOIA process, the National Security Archive and the Project on Government Oversight will soon distribute a similar, independent, unofficial survey to non-government FOIA stakeholders so that their views on FOIA fees can be cataloged and documented.

The oversight and accountability subcommittee also addressed the results of its survey to each federal agency’s FOIA public liaison (FPL), which was distributed with the goal of learning what individual FPLs do to fulfill their mandate to reduce FOIA delays, increase transparency, and resolve FOIA disputes. Survey respondents overwhelmingly noted that increased training and funding are necessary for improved FOIA performance. Unfortunately, 10 out of 100 agency FPLs did not respond to the Committee’s request for information – two of whom were even on the FOIA Advisory Committee. These omissions underscore not only how difficult it is to compel some agencies to engage in improving their FOIA administration, but also how necessary it is for the Committee itself to find a way to do more than advise on FOIA improvement.

The meeting also contained some discussion about the future of the Committee itself. The Committee’s current term expires in early 2016, and the lack of any major deliverables to date begs the question of whether the Committee will actually do anything to improve FOIA so that more documents are released more quickly to more people. And if not, what changes need to be made for it to do so if it is reconstituted in 2016?