March 28, 2012

When Is A FOIA Portal Not A FOIA Portal?

By Anne L. Weismann screenshotCREW, like many other openness advocates, has welcomed the development of a FOIA portal by the Environmental Protection Agency, in partnership with the Commerce Department and the National Archives and Records Administration. Intended to provide a one-stop shop for submitting FOIA requests and uniformity in the FOIA process, the FOIA portal also will provide a central place to find records already released by agencies, and make it easier for agencies to manage their own FOIA processes. So what’s not to like?

That is a question better asked of the Department of Justice’s Office of Information Policy (OIP), which has directed considerable energy toward duplicating, but in name only, some of the EPA portal’s features, and explaining why its website is the better choice. Things reached a climax of sorts last week, when OIP Director Melanie Pustay testified before the technology subcommittee of the House Government and Oversight Committee. In testimony described as “combative,” Ms. Pustay clung to the notion, which provides hyperlinks to federal agencies’ web pages, is the equivalent of a FOIA portal. She then declared success on this front, made clear DOJ’s work was done, and refused to answer a question about why DOJ was not, instead, working with EPA to develop a true, government-wide FOIA portal.

As a number of us in the access community have been trying to explain to DOJ and other government officials for some time, and the EPA FOIA Portal are two very different things. While each provides a valuable service, they decidedly are not interchangeable. Using still will require a requester to submit FOIA requests individually to each recipient agency, following the individual formats each agency requires. And will not house all of the documents agencies already have released under the FOIA. By contrast, EPA’s FOIA portal will provide a uniform way to submit a request of uniform format following one procedure to one central place, where it will be distributed to the appropriate agencies and agency components. Moreover, the FOIA Portal will house all documents released under the FOIA, reducing the number of unnecessary, duplicate requests.

Read: CREW and Other Groups Reaffirm Committment to FOIA Portal

Given the obvious benefits of EPA’s FOIA portal, one has to ask why DOJ is attempting to compete in the same space. Something else DOJ did last week may reveal the answer to this question. On March 19, 2012, DOJ published a Privacy Act System of Records notice covering, among other things, “records related to requests for OIP to serve as Ombudsman in disputes between federal agencies and individuals who submit FOIA requests . . .” OIP as FOIA ombudsman – isn’t that the role Congress legislated for NARA’s Office of Government Information Services (OGIS)? Sure is, and Congress made clear that was a role OGIS enjoyed to the exclusion of DOJ to ensure the ombudsman was “free from the influence of the Federal agency that litigates FOIA disputes – the Department of Justice.” [Congressional Record: February 14, 2008 (Senate), pg. S1050-S1051]. Which leads to the question when is a FOIA ombudsman not a FOIA ombudsman?

Could all this simply be a naked power grab by an agency attempting to protect its turf? There may be a far more innocent explanation, but I haven’t seen it yet.

This post was updated 3.29.12


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