The Need For Deep Pockets And Lawyers Means The FOIA Process Benefits Corporations The Most

from the and-the-general-public-gains-nothing dept

FOIA reform is (yet) again working its way through the bowels of Congress. Unfortunatley, the FOIA process is resistant to fixing because there's very little in it for the government. Agencies are supposed to err on the side of openness and transparency, but a stack of broadly-written exemptions makes it's far too easy for them to operate in opacity.

One of the major problems with the FOIA process is that it takes a lawyer on retainer and lots of money to get the most out of it. For most FOIA filers, an agency's refusal to respond in a timely fashion or release requested information is the end of the line. Unless they're working in conjunction with a major journalistic enterprise, the FOIA ball is completely in the government's court.

Over the past few decades, this has led to only certain components of the American public being able to make the most of the FOIA process. And these entities aren't interested in dragging the government's secrets out into the open. They're more interested in acquiring information on other private entities via the government's transparency tool.

Prawfsblog, by way of Scott Greenfield, noticed something about some FOIA stats. The "people" making the most requests aren't "people" in the generally accepted use of the word.


Margaret Kwoka of Prawfsblog notes the law isn't really serving the purpose it was intended to.
The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.
This is something that has been noted here before. FOIA requests roll in from journalists when hints are dropped (usually by anonymous government officials) about something not previously exposed. In response, government agencies quite often stonewall requesters until Issue X fades from the public eye. And there's not much any requester can do to expedite the process other than file a lawsuit -- which isn't an option for many people. Scott Greenfield points out what happens to the average (read: non-corporate) requester.
Make a FOIA request, wait your ten days, and get . . . nothing. Complain and get . . . nothing. Maybe you get a response years later. And when you do, maybe it’s responsive, or maybe it’s ten pages, fully redacted, out of 473, the rest of which is refused. Or maybe you get . . . nothing.

Somebody in the government is supposed to respond to a FOIA request. That somebody has a job to do, and it’s not responding to your FOIA request. Maybe you get notification that they would be thrilled to respond, if only you would send them $71,493.27 to cover the cost of your ten pages. And they will still get back to you when they’re good and ready, if at all.

What you gonna do about it?
The government knows this. And it likes it this way. FOIA reform is a perennial effort, but the law remains greatly unchanged. No one wants to shift too much power to the people and make the letter of the law approach the spirit of the law. But, as is the case with much of the government, it finds itself relatively powerless in the face of deep-pocketed corporate interests.

Large corporations have the staffing, money and lawyers to make the law work the way it's supposed to work. And the government is more than happy to oblige them. First off, these entities have the power to compel the government to produce requested documents. Secondly, the information being turned over to requesting corporations has very little to do with the government's secrets. As long as well-lawyered corporations are asking for little more than info on their competitors, the government is all too happy to reply to their requests.
There’s gold in government documents, and these are the documents that the government doesn’t care enough to keep private, mostly because what they reveal isn’t any of the government’s deep, dark secrets, but ours.
What's more, the information requested by these corporations goes into their private stock. It's very rarely offered up for public consumption. The government doesn't mind making its secrets someone else's secrets. But it certainly doesn't care for its secrets being made public knowledge.

The FOIA process is broken -- hopefully not irrevocably. There are moments where it works brilliantly, but mostly due to operator error on the respondent side. Things slip through that were obviously meant to be kept buried. Inconsistent redactions allow one requester to access what another couldn't, etc. But, on the whole, the "presumption of openness" urged by the administration is never going to take hold without serious reform of the existing law.

As Greenfield notes, the presumption of opacity is still in full effect, even when that opacity is patently ridiculous.
As of this date, the FOIA website still lists Eric Holder as Attorney General, even though he has been replaced by Loretta Lynch. When Holder’s resignation was announced, the Office of Information Policy made a FOIA request for the identity of the new Attorney General, so they could correct their FAQs. They are still awaiting a response.

Filed Under: deep pockets, foia, government, lawsuits, transparency


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  • identicon
    Anonymous Coward, 17 Feb 2016 @ 3:41pm

    Check first line for misspelled word: Unfortunatley

    reply to this | link to this | view in chronology ]

  • identicon
    Loki, 17 Feb 2016 @ 4:06pm

    Serious reform of existing law isn't going to happen until there is serious reform of existing lawmakers.

    As long the same tired hacks keep getting reelected, nothing is going to change.

    reply to this | link to this | view in chronology ]

  • icon
    Ben (profile), 17 Feb 2016 @ 5:14pm

    Obviously affects National Security

    When Holder’s resignation was announced, the Office of Information Policy made a FOIA request for the identity of the new Attorney General, so they could correct their FAQs. They are still awaiting a response.
    Who the Attorney General is should be considered a national secret; disclosure would compromise too many active investigations and prosecutions. /s

    reply to this | link to this | view in chronology ]

  • identicon
    KRA, 17 Feb 2016 @ 5:33pm

    We get the government we deserve: opaque, deceptive and in the pocket of plutocrats. But that's okay because, you know, the Walking Dead started up again so I can turn my thoughts to other matters.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Feb 2016 @ 5:35pm

    "expedite the process other than file a lawsuit -- which isn't an option for many people."

    I think you meant *most* people.
    Even upper middle class people cannot afford 5 to 6 figure bills and years of their life waiting for what will most likely be a failed lawsuit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Feb 2016 @ 6:11pm

    The system is rigged by and for those who can afford justice. Nothing new here in the United $tate$ of America, move along.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Feb 2016 @ 7:10pm

    The government will be facing wide scale rebellion at the rate it is acting like it is a tyranny when they should be going to the extreme to work for the people not rule them. The fact that making it appear they are for the people will keep things running smoothly long term seems to be lost on them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Feb 2016 @ 11:00pm

      Re:

      I believe this to be part of the reason why the monied interests aren't getting their way with this election. The only ones happy about it are those with secrets to hide and those with money to bring them out. If you can't buy your law, forget it.

      It is because of actions shown here near every day that people have lost faith in this government. They are not being fooled anymore and that worries those in power, as it should. The real tea party started over high taxes and lack of representation. Sure haven't seen much of that representation in the last decade or so for the public.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Feb 2016 @ 1:06am

        Re: Re:

        Probably because the government has been teaching people that the founding fathers were terrorists to be hated and reviled not respected.

        reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 17 Feb 2016 @ 8:10pm

    FOIA and the Holy Grail

    King Arthur: [about the inscription on the rock] What does it say, Brother Maynard?
    Brother Maynard: It reads, Here may be found the last words of Joseph of Aramathia. He who is valiant and pure of spirit may find the holy grail in the Castle of REDACTED...
    King Arthur: What?
    Brother Maynard: The Castle of REDACTED.
    Sir Bedevere: What is that?
    Brother Maynard: He must have been working for the government while carving it.
    King Arthur: Oh come on!
    Brother Maynard: Well, that's what it says.
    King Arthur: Look, if he was working for the government, he wouldn't have bothered to carve 'REDACTED'.
    Sir Galahad: Maybe he was dictating it.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 17 Feb 2016 @ 9:14pm

    Make it a performance goal tied to budget

    Somebody in the government is supposed to respond to a FOIA request. That somebody has a job to do, and it’s not responding to your FOIA request.

    The solution is to make it a performance goal and tie it to the department budget. For example:

    "Memo to departments: From now on, 10% of your budget is contingent on responding to 80% of FOIA requests within 10 days."

    Those are words departments would understand, and job hours would be allocated accordingly. And if they don't? Less taxes for us: win-win.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 18 Feb 2016 @ 2:56am

      Re: Make it a performance goal tied to budget

      This would work on many other fields but I suspect some govt bodies would be left without funding... Or magically begin doing it awesomely right.

      reply to this | link to this | view in chronology ]

    • icon
      Idobek (profile), 18 Feb 2016 @ 3:59am

      Re: Make it a performance goal tied to budget

      What you're actually doing there is FOIAing how many different definitions of "respond" that government departments can come up with.

      reply to this | link to this | view in chronology ]

  • icon
    mockylock (profile), 18 Feb 2016 @ 7:37am

    Many great ideas....

    I see quite a few people throwing out ideas of "they should do this" and "they're doing this wrong". That's fine, but I assure you a 13 paragraph article will hardly scratch the surface of what's actually occurring every day.

    We literally get truckloads of cold war documents in which have been declassified, on paper. They're manually scanned in, then redacted, to keep the bad guys from finding out Personal information on health documents and where particular contaminants are stored. We also check for classified information AND radiation. Hard copies are made, as well as PDF-A's, stored, indexed, searched and so forth, for the public to search through, whether it be online or straight from the box.

    Every single piece of communication must be recorded. Every photo taken must be recorded. All of this has to be stored. All of this has to be indexed. All of this has to be redacted. This takes manpower.

    The thing is, storage grows every year. Back-ups have to be transferred to different places. Equipment is obsolete and has to be swapped out every (x) years. It's a huge boat, and we're only a leaf at the end of the government oak tree. In fact, we probably have less than 1000 employees worldwide for this contract, and it will only get bigger.

    It all comes with a huge price tag, just for a small operation, all for FOIA.

    Now, that's great, right? It's what our taxes pay for. Even though anyone can go to our site and search for most of this, we still get backed up with redacting so YOU, or your Grandparents who worked at a uranium filings plant, don't have their health records and SSN released to the world.

    I can't account for all of the other branches or offices, but we do everything we can to make this info available on a website if it's requested. Unfortunately, there are so many records being processed, and at random increments, that there's no predicting how much you're going to be behind or ahead. So, there will always be some record that has to be picked out of the box until it's digitized.

    All of this info is always under litigation for one reason or another. It's all unaccounted for hours, all in the name of "Freedom". Everyone's paying taxes on these contracts so that some jackass can request 50,000 documents to see if there's a possibility that their uncle was fired for the right reason back in 1960, or JUST TO MAKE SURE there wasn't any conversation about the whereabouts of a storage site. If there IS a storage site, some dude who lives 1300 miles away wants to make sure that there are noted rad levels within reason, though it's probably possible that quite a few of these requests are from conspiracy theorists.

    ALL of this bullshit happens every day. You don't know how many requests you're going to get. I'm certain that places like the DOJ or those responsible for POTUS records are far more busy than ours, but when you have a massive amount of people who want to find out about aliens, racism, segregation, or whatever-the-fuck-the-flavor-of-the-day-is... someone has to address it, personally.



    If they want to change the system, make it mandatory to have DMZ search systems, and charge a fee for access to that, even if it's $20. Base other charges for large litigation cases on the size of the documents pulled, as well as a fast track for more money. If people are serious about wasting resources over trying to find aliens or conspiracies, at least charge a minimum fee. If it's going to need more attention, make it worth their while.

    You're right, as the government benefits ZERO from it, but giving complete transparency for free only costs the taxpayers money.

    I know exactly how all of this works, and I agree with all of it, good and bad. In fact, the tax money put toward this feeds my children. This contract/project will continue to grow, but it can't wasteful due to some guy sitting in his parents basement wanting to see if ALF was buried in Yucca Mountain. It compounds the time for those who actually need it, and something needs to be done.

    If you have any more questions, feel free to ask me. Nobody around here is sitting around collecting a paycheck, and we're pretty advanced for the ship we're running. Redacting is a serious thing, and it's for ALL of our safety (just so the DOE can lose its OWN employees info in the end).

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 18 Feb 2016 @ 10:00am

    I personally think one of the biggest problems at this point is FOIA abusers. There seems to be groups of people who are intent on "uncovering the truth" by having hundreds of people ask for the same sorts of documents, looking for any discrepancies, or any words not redacted exactly the same in each response set. They create a huge work load for, well... nothing really.

    Others ask for insanely huge response sets. "all memos, communications, and documents related to the George W Bush Presidency" would generate probably of a billion pages, and then they get upset when it takes a long time to get an answer.

    It would be interesting to see out of thr 700,000 requests how many of them are a total waste of time, money, and manpower - and of course, make the valid requests take much longer.

    reply to this | link to this | view in chronology ]

    • icon
      mockylock (profile), 18 Feb 2016 @ 10:53am

      Re:

      I agree completely... and I assure you that most are a total waste of time. Actually, quite a large percentage of them are by students performing educational research of the sort. IF, by chance, the funds that we spend in hard searches by personnel were put toward better technology for indexing (such as previous google appliances), and toward more people redacting, the bottleneck would improve. Small and insignificant abusers would be able to gather more without even speaking to a FOIA rep.

      One of the huge issues right now is straight up redacting. There's no true algorithm in software which can detect and do this effectively, so you have to use pure manpower to read each line and look for well known symbols/correlations. When we get a request from a lawyer wanting (X) documents pertaining to project (x) with these keywords, there's a possibility they're going to have to wait until those documents are actually processed, as they're not even digitized yet.

      I don't know if it will ever plateau, regardless of how many people you shove in it. Ours involves old historical documents, and not even the documents created every day by e-mail, etc. Granted, we're required to never place personal information in any mail transaction, but it still has to be checked before becoming FOIA eligible.

      There needs to be better technology, and there needs to be some accountability for these requests. We can make bots capable of deciphering hundreds of different captcha types, but can't come up with something that's able to figure out redacting without human intervention.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 18 Feb 2016 @ 6:57pm

      Re:

      There is a problem with that, but there are also relatively new laws to deal with it, so I'm considering that solved unless it turns out the law is inadequate.

      reply to this | link to this | view in chronology ]


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