In today’s mail we received a new example that illustrates why we called the Freedom of Information Act (FOIA) “anything but an efficient and effective tool that the public can use to get timely access to government records” in our recent testimony before the Senate Judiciary Committee: a final response to a FOIA request we made to the Department of Defense (DOD) almost a year and a half ago, and that DOD had told use to expect within “a few days.”
The FOIA response is a result of a project OTG launched to compare the experience using FOIAonline, the centralized web service that allows users to make and manage requests to any agency that is participating in the system, with the experience of making requests at other agencies. We stopped updating the project’s blog with our responses and observations in May 2013 after we received a final response from most of the agencies.
DOD’s tardy response isn’t the only troubling part of our experience making a request with the agency. Briefly, here are some of our other issues:
- We made our original request via DOD’s online portal. The confirmation email that was automatically generated included no information about who we should contact with any questions about the request, or about how to track the request. While including such information in the confirmation email is not required by the law, it would make it much easier for the requester to follow-up on the request.
- When we finally did receive a tracking number from DOD, it was included in an email telling us that our request had been classified as “complex” and that due to “unusual circumstances,” would not be able to meet the 20 day response time required under the law. This response was unexpected as when we set the parameters of our project, we specifically chose a report that would be held by each agency, should be easily identifiable, and should not include any particularly sensitive information.
- When we called DOD to discuss the request, we were told that the language asking us to clarify our request is standard language DOD includes in all its responses to FOIA requests. DOD seems to be taking advantage of a provision of the law that is intended to give agencies additional time to process a request if the records are stored off site, if the request is particularly large, or if DOD would have to consult with other components to process the request to free themselves from the law’s 20 day deadline. On top of running contrary to the spirit, and– more importantly — the requirements of the law, this practice wastes the time of both FOIA processors and requesters.
- They mailed us a copy of the report. For each of the request we filed, we requested any responsive documents be sent to us electronically. Sending records electronically saves time and money: it should be the default method for responding to FOIA requests. Yet, despite the fact all of the records we requested were almost certainly created digitally, a large portion of the records we received back were via the US mail (the State Department actually spent $16 to send the records via registered mail).
The kinds of issues discussed above are not uncommon at other agencies as well. And, unfortunately, there is no silver bullet solution for making the FOIA process work better for the public. However, one of the priorities discussed in our testimony, strengthening and empowering the Office of Government Information Services (OGIS), would help move us to a better track.
OGIS was created by Congress in 2007 to fill two roles: 1) act as a mediator, and 2) make recommendations to Congress and the President on how to improve the FOIA process. Congress also charged OGIS with the responsibility of reviewing agency compliance with the law. Having a “cop on the block,” so to speak, would make it easier for requesters to bring the kinds of problems we currently see at DOD to the attention of someone who could actually do something about it. Since the office’s creation, though, it has lacked the resources and authority to meet these functions.
As some of you may remember, in mid-December I called the DHS FOIA Customer Service Center to ask about my request because I had yet to receive a tracking number, or even an acknowledgement of my request. At that time I was told that there was no record of my request in the system, and was asked to please re-submit my request via email. Today I decided to check back in on my request with the Department of Homeland Security because I still had not gotten a tracking number, or any acknowledgement.
The good news? The FOIA Customer Service Center found my original request – according to their records, an acknowledgement letter had been sent out on October 16 – only a few days after I emailed my original request. It seems that letter must have been lost in the mail, however, since I have never seen it (and, by the way, I still don’t see any logic behind agencies answer FOIA requests submitted via email and explicitly requesting electronic copies of records in an electronic format with a paper letter sent via US mail). I even managed to get the tracking number assigned to the original request: 2013-HQFO-0091-JH.
The bad news? I still have no clue when I might actually receive a response to me request. I also have no idea why they could not find the record the first time I called the service center, or what happened to the second request. I’m also preparing myself to have to scan in any (hopefully) released documents before I can make them available for anyone else who might be interested in the text.
UPDATE: DHS finally emailed me a copy of the acknowledgement letter to my original request made on October 4 (still no word on the second request I submitted when DHS told me it had no record of my request in December…). I’m very glad to know DHS can email back requesters, but am all the more perplexed as to why they put the letter in the mail in the first place.
Annoyingly, the acknowledgement letter says that DHS will take additional time to process the request because my “request seeks numerous documents that will necessitate a thorough and wide-ranging search.” The request clearly seeks only a single document: we made such a significantly narrow request so that our project would not create an undue burden on FOIA offices.
We found similar language regarding “numerous documents” in the acknowledgement letter sent to us by DOD – when we called the FOIA processor to make sure there was not a misunderstanding about what we are seeking, he told us it was standard language they include in all letters. Using such language is disingenuous, at best, and – as our commenter Kel McClanahan has pointed out – not allowed under the FOIA.
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On 10/17 we talked to our FOIA request processor at the Department of Defense about the email we received the previous week classifying our request as “complex” and asking us to call to narrow our request. We were told that the language in the email is standard for every FOIA confirmation they send out. They also told us that we could expect a response on our request within a few days.
On 10/11/12 the Department of Defense sent us the following email:
This is an interim response to your Freedom of Information Act (FOIA)
request dated October 4, 2012 which was received in this office on the same
day. Your request has been assigned case number 13-F-0016 and we ask that
you use that number when referring to your request.
We will be unable to respond to your request within the FOIA’s 20 day
statutory time period as there are unusual circumstances which impact on our
ability to quickly process your request. These unusual circumstances are:
(a) the need to search for and collect records from a facility
geographically separated from this Office; (b) the potential volume of
records responsive to your request; and (c) the need for consultation with
one or more other agencies or DoD components having a substantial interest
in either the determination or the subject matter of the records. For these
reasons, your request has been placed in our complex processing queue and
will be worked in the order the request was received. Our current
administrative workload is 1,199 open requests.
If you would like to discuss how to limit your request in order to
speed the processing time, we would be pleased to discuss how you might
modify your request. The action officer assigned to your request is Donald
Nichelson at (571) 372-0425. The toll free number for this Office is
You may not be aware that we maintain a website and electronic reading
room at: http://www.dod.mil/pubs/foi/.
We called and left a message the following day clarifying that we are looking for a single record and attempting to better describe the report.
We filed our request with the Department of Defense via online form on 10/4/12. We received an automatically generated confirmation email; it included no additional information.