FOIA after the Open Government Directive

Sign up for The Media Today, CJR’s daily newsletter.

With today’s launch of the Obama administration’s Open Government Plan, we’ve passed another milestone on the path towards a new era of transparency.

And while governmental promises to emphasize transparency and collaboration are easily made, the Obama administration has made it clear that they plan to make a serious go of it—in part because while making the announcement, key officials foregrounded the management principle that without persistently and publicly measuring progress, you won’t find results.

“The president has called for us to deliver on a set of measures,” Aneesh Chopra, the administration’s chief technology officer, told viewers during a live Webcast announcing the directive.

“We want to make sure that we are held accountable for results,” added chief information officer Vivek Kundra.

While the directive mostly outlines some promising first steps, the end goal seems to be to use the Internet to routinely publish great amounts of government data and create a kind of transparency that simply wasn’t possible before.

Given that forward look, it’s interesting that the Open Government Directive (pdf) repeatedly mentions the forty-plus year old Freedom of Information Act, the keystone achievement of the open government movement.

For all the information that FOIA has pried out of our government, and all the benefits it has brought and will no doubt bring long into the future, the law is very much a relic of a paper time: type up a request for a document, mail it in, and wait for it to be mailed back to you—whenever the agency in question gets around to it.

The directive indicates that the administration sees the problems inherent in a request-and-wait transparency model. Take, for example, the memo’s instruction that “agencies should proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA.”

The government already has gotten into the business of regularly or automatically releasing continually compiled databases of information online—meteorological measurements, regulatory actions, labor statistics, etc. It’s a bit harder to see how—even if they wanted to—government could meet the challenge of regularly, preemptively, and manageably releasing the discrete documents, reports, and memos that are routinely the subjects of journalists’ FOIA requests.

Even the most tech-focused of today’s open government reforms stand on the shoulders of FOIA. Starting on page one of the directive, Office of Management and Budget Director Peter Orszag’s introductory letter uses the administration’s early rollback of the Bush Justice Department’s restrictive interpretation of the law as a rhetorical crutch.

From there, the directive makes it clear that FOIA isn’t going away anytime soon, noting that prompt responses to FOIA keep “the public apprised of specific informational matters they seek.”

It requires that agencies with “significant” backlogs of FOIA requests put plans and benchmarks into place to reduce those requests by a modest 10 percent a year. (With that as the goal, Zeno’s paradox would suggest that backlogs will never be fully eliminated.) The directive is silent on the never-enforced amendments to FOIA that, since 1997, have required agencies to make any document that they’ve released under the law available online either upon receipt of a second request for the information, or after determining that the information is merely likely to be subject to a second request.

But the directive does require agencies to post their Freedom of Information Act reports—essentially spreadsheets that catalog statistics on backlogs, requests received, requests denied and for what reasons, etc.—online in a open, machine-readable format.

For now, they’re available in a variety of non-standard formats from the Justice Department. In 2007, the now-defunct Coalition of Journalists for Open Government laboriously examined the dispersed data and produced a series of charts that told the not-altogether-happy story of how FOIA was being used in the Bush presidency.

But with the implementation of today’s directive, that sort of data will be much more easily accessible. It will be a simple matter for outside developers to take it and repurpose it into a widget that, say, allowed for agency-to-agency comparisons on FOIA responsiveness. It’s easy to see how those measurements could encourage (or shame) agencies to improve—to turn around requests faster, to precisely explain their reliance on specific exemptions, and to reduce outstanding backlogs.

While the directive doesn’t spell this step out, it is possible the White House has it in mind to do that themselves. The directive says that the White House will launch an “Open Government Dashboard” Web site to track agencies’ progress on open government steps. A cross-agency FOIA compliance and implementation dashboard—think charts, timelines, and other helpful visualizations—would fit right in.

It would be a fitting way to use a 2009 tool to measure and improve a 1966 act.

UPDATE: The White House has posted a list of agency open government commitments to accompany today’s broader announcement. The first one speaks directly to the administration’s FOIA monitoring plans:

Department of Justice: Improving Access to Government Information
The Department of Justice is setting a transparency precedent for the rest of government by being the first to release its Annual Freedom of Information Act (FOIA) Report in a machine-readable format. Annual FOIA Reports include detailed statistics on the number and disposition of FOIA requests, including response times, volume of requests, and personnel costs. As other agencies’ Annual FOIA Reports are also made available in this format, members of the public, including public interest organizations, scholars, and the media, will be able to track performance. Ultimately, increasing the usefulness of the FOIA processing data will also enable targeted outreach to agencies by the Department of Justice to ensure greater compliance with the FOIA government-wide.

Has America ever needed a media defender more than now? Help us by joining CJR today.

Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.