Thread by @weareoversight

A vital tool for the preservation of a democratic government is the Freedom of Information Act. As the abuses of the Trump administration have made clear, FOIA contains significant weaknesses. This #SunshineWeek, we outline 7 reforms to improve transparency and accountability.

1. Require adequate resources for responding to FOIA requests. Many of the problems with modern FOIA backlogs are a question of supply and demand: There are too many requests for agencies to satisfy with too few resources.
foiaproject.org/2019/12/15/foi…

The statute requires that agencies respond to requests within 20 working days, but in practice, the deadline is meaningless. Agencies rarely come close to meeting it, and many don’t produce records for years.
americanoversight.org/seven-reforms-…

The Biden administration, through OMB, should direct agencies with substantial backlogs to hire or assign more employees to respond to FOIA requests and to ensure that they upgrade technological capabilities to efficiently search and produce documents.

Congress should require agencies to substantially increase the portion of their budgets allocated to processing FOIA requests whenever they process fewer requests in a fiscal year than they had received.

2. Strengthen the “foreseeable harm” standard. A common claim federal agencies make for redacting almost all substantive information from public records is the “deliberative process” privilege.

In 2016, Congress tried to stop this problem by requiring that agencies reasonably foresee harm as coming from the disclosure of that information. But this standard hasn’t changed agency practices, and courts have deferred to agency judgments of purported harm.

Congress can strengthen the standard in two ways: First, it should require agencies to consider specific factors in assessing whether a foreseeable harm would result.

Second, Congress should require that courts be required to make an independent judgment as to whether foreseeable harm would result from disclosure, rather than deferring to the agency.

Additionally, the attorney general should strengthen the standard by issuing a policy memo stating that DOJ will not defend agency withholdings unless the agency establishes that foreseeable harm would result.

3. Prevent indefinite delays caused by so-called “consults.” Agency FOIA regulations often provide that before producing records in response to a request, an agency will “consult” with other components or agencies that may be referenced in the documents.

There is no statutory time limit for the length of these consultations, leading frequently to an interminable delay that can be used strategically to postpone releasing sensitive records.

Congress should pass legislation that any agency or component that fails to respond to a request for consultation within 20 working days is presumed to consent to release of the records.

4. Restore the competitive harm standard for Exemption 4 commercial information. For decades, federal courts required that for commercial information to be considered “confidential” and shielded from disclosure, that disclosure must cause “substantial competitive harm.”

But in 2019, the Supreme Court struck down this decades-old standard, and didn’t put a firm rule in its place. As a result, some agencies quickly began to redact and withhold significantly more information under this exemption.

Congress should amend FOIA to clearly reinstate the “substantial competitive harm” standard for withholding information under Exemption 4. This reform already has bipartisan support in the Senate.

5. Systematic preservation and searches of text messages. Agency officials, including very senior officials, are often using texts and similar communication applications as a substitute for email.

Most agencies do not have efficient or systematic methods of preserving or searching these records. Some officials may even be taking these steps in order to avoid creating records readily identified in response to FOIA or congressional requests.

Congress should, at least for the records of senior officials, require agencies to create and maintain electronically searchable systems for uploading and preserving text messages and similar records on applications such as Signal, Slack, WhatsApp, and more.

6. Ensure responsive records are preserved. FOIA itself does not currently create a clear, independent obligation for an agency to preserve the records potentially responsive to requests it receives.

The Federal Records Act requires agencies to create plans to preserve specific types of records, but not all agency records that might be responsive to FOIA requests have to be preserved under the FRA.

Congress should amend FOIA to require agencies to ensure such records are preserved until a response is issued, such as by suspending deletions or sending preservation notices to easily identifiable record custodians.

7. Subject government contractors’ records to FOIA when they carry out important public functions. The records of government contractors carrying out public functions are generally not considered agency records subject to FOIA.

Congress should ensure that the records of these detention centers, and other similarly empowered contractors, are subject to release under FOIA.

This year marks the 55th anniversary of the passage of FOIA. With these reforms, FOIA can be an even stronger protection against government abuses and a brighter beacon of transparency.
americanoversight.org/seven-reforms-…