One size does NOT fit all for federal FOIA processing

By: David K.

When one takes a look at the Federal Freedom of Information Act, (link) it is abundantly clear that the authors of the legislation understood that, when it comes to FOIA, “one size does not fit all”.

This becomes especially clear when examining the Act with regards to the instructions for each agency to define what a “reasonable” description is for the records they maintain. In addition, OMB guidelines allow each agency to establish their own fee structure to recover some of the costs related their search for responsive records.

This concept of “one size does not fit all” is also true when it comes to deploying FOIA case processing software.  Because of the inherent variables from agency to agency, AINS has built FOIAXpress (the leading FOIA case processing software used by over 200 Federal departments, agencies and sub-agencies) to be completely configurable. The robust configuration capabilities of FOIAXpress are essential for enabling each agency to deploy their FOIA case processing software in a manner that reflects their own unique needs and requirements. Some of these critical areas include setting up security roles and groups, letter/email templates, and the FOIA document file cabinet.

As Congress contemplates the language for HR 1211 (the 2013 Freedom of Information Act) it is vitally important that any centralized, government-wide portal embrace the concept of open standards and interoperability so the Portal can connect with existing FOIA case processing solutions.  This approach leverages and protects the Federal government’s existing investment in FOIA technology.  A single, closed FOIA portal connected to a single, monolithic FOIA case processing solution is highly restrictive for agencies and a giant step backwards for all those concerned about freedom of information, transparency, and open government. In the case of FOIA processing, one size does not fit all.

FOIAonline? The facts are wrong.

By: David K.

The Environmental Protection Agency (EPA) and the promoters of FOIAonline would like you to believe that FOIA case processing technology within the Federal government is dysfunctional.  Nothing could be further from the truth. 

FOIAXpress, built and supported by AINS, is the leading FOIA case processing solution used by over 200 federal departments, agencies and sub-agencies.  Our FOIA web portal has been deployed by over 20 agencies and provides a totally integrated FOIA solution.  Over the last 15 years we have saved the US Government tens of millions of dollars with improved FOIA case management processing and efficiency as well as the production of the required DOJ Annual FOIA report – a task that used to take some agencies month to complete can now be done with a click of the mouse.

A centralized, government-wide FOIA portal is a great idea.  But why is the EPA, whose mission is to protect the environment and human health spending staff time, agency resources and tax payer dollars to promote and build a portal and FOIA case processing solution?  Why has DOJ Office of Information Policy and NARA’s Office of Government Information Services abdicated their responsibility for FOIA oversight?  Where is OMB in all of this when Circular A-76 specifically prohibits the federal government from competing with existing commercial solutions?  And what’s up with the House Republicans backing HR 1211, a bill that undermines the job creation efforts of small businesses and establishes and funds yet another government program – what happened to their commitment to smaller government?

Any centralized FOIA portal should be competed for with a full and open procurement process.  If the EPA wants to compete, then the government must recuse itself from being a fair and impartial judge on making the award. Perhaps a firm like the Mitre Corporation should be tasked to conduct the procurement.  A government-wide FOIA portal must be built with open standards and support interoperability with existing FOIA case processing solutions – whether they be commercial software like FOIAXpress or government-built solutions like SWIFT at HHS or the FBI’s FOIA software.  Inter-connectivity is vital to protect and leverage the government’s existing investments in FOIA technology and staff training.

In times of sequestration and budget cuts the government should not be creating a new program to unfairly compete with the commercial sector which has a proven track record in providing cost effective FOIA case processing software.

Canadian Information Commissioner recommends elected officials be subject to FOI

By: Michelle S.

Canada’s Information Commissioner Suzanne Legault has been conducting a wide-ranging review of Canada’s federal access to information legislation. These efforts follow Canada’s recently poor ranking for right-to-know legislation across the globe conducted by the Centre for Law and Democracy. In 2011, Canada’s standing was 40^th of 89 countries; in June 2012, Canada’s ranking was 55^th of 93 countries. Legault said the “the analysis that this group has done is going to be a really useful tool” as she begins her investigation.

Included in Legault’s review is a recommendation for elected officials to be subject to freedom of information legislation -- a recommendation that the Information Commissioner of Ontario, Ann Cavoukian, made to the provincial Ontario government a week earlier.

Typically, elected officials in Canada are not subject to access legislation although there are varying rules for different government levels.  “We have a complete patchwork and types of either legislation or policies, both formal and informal. It’s very difficult for citizens to actually hold their elected officials accountable because the rules differ at the municipal, provincial and federal level and they differ between provinces,” she said.

Legault’s Information Commissioner predecessor, Robert Marleau, made a similar recommendation to the government in 2009. At the time, Minister of Justice Rob Nicholson identified some “challenges,” including the concept of parliamentary privilege, and said further study would be needed. Legault acknowledges there are challenges, saying “There is always a concern about constituency work and political (party) information, and with personal information and parliamentary privilege information, but that does not mean it can’t be covered with exemptions,” she said.

Ultimately, Legault feels that “I think Canadians actually want to have high levels of accountability systems, for anywhere that their taxpayer dollars are being spent.”

You can read the full article here.

Whether in Canada or the U.S., how much privilege should elected officials be given over their information? 

Should FOIA requester identities be protected?

By: Michelle S.

A City University of New York (CUNY) Law School academic recently published a paper to the April edition of Government Information Quarterly arguing that federal agencies should treat the identities of Freedom of Information Act requesters with the same privacy protections as librarians extend to patrons.

Sarah Lamdan, a CUNY associate law library professor, argues in her paper  that the routine online disclosure by agencies of the identities of FOIA requestors has potentially negative effects on the flow of information, because FOIA log information "could hint at upcoming news stories, potential lawsuit, and reveal where people work and what they are doing on a given day.”

She notes that Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, in 2011 asked 180 federal agencies to send the names of people who requested documents under FOIA, as well as a description of the information sought and the date of the request. Lamden calls the congressman’s request “intrusive” because "assumptions about requestors' rationales can be hasty conclusions that imperil personal freedoms." Read the full article here.

In the act of seeking public information, should requesters become subjects of public information themselves? Is there any harm to publically releasing FOIA requester names and request information? Is the fact that requester information can become public a possible deterrent to future requesters and the flow of public information?

The cost of freedom (of information)

By: David K.

Last week, at the 2013 National Freedom of Information Day celebration held once again at the Newseum Knight Conference Center in Washington, DC, the American Library Association (ALA) presented its annual James Madison Award posthumously to Aaron Swartz who, before his untimely death in January of this year, was an outspoken advocate for freedom of public information.  The ALA established the James Madison Award in 1989 and it is presented annually on the anniversary of Madison's birth to honor individuals or groups who have championed, protected and promoted public access to government information and the public’s right to know at the national level.

One can only speculate if there is a connection between Aaron’s unauthorized release of public documents and his suicide. However, one cannot dispute the government’s action to arrest Aaron in an attempt to restrain and silence his devotion to public access to information.  We will never know if Aaron paid with his life for our right to freedom of government information.

So what is the true “cost” of Freedom of Information?

One data point in this equation is provided by the US Department of Justice/Office of Information Policy who reported that the costs of all FOIA related activities in 2011 exceeded $435 million dollars.

Another data point has recently been touted by the sponsors of FOIAOnline and the many First Amendment rights organizations that have come to embrace this initiative.  It is now reported that FOIAOnline will save the government over $200 million dollars over five years.

Without critical examination, the press and many of the leading First Amendment groups have accepted the EPA’s research that has been used to justify the government spending more tax payer’s money to compete with FOIA software developed and supported by the commercial sector.

As the clear leader in FOIA processing solutions it is disturbing to watch the FOIAOnline initiative grow to where it is now part of the Draft “FOIA Oversight and Implementation Act of 2013”.   This enthusiasm is misplaced as the research used to justify this project is fundamentally flawed and grossly exaggerated – and we can prove it.

Who amongst Congress, the press and First Amendment rights groups has the courage like Aaron to seek the truth and at what cost?