Four years after President Barack Obama pledged to make the federal government more transparent, government watchers complain about a growing backlog of Freedom of Information Act requests. But a new office under the National Archives hopes to bring some clarity to frustrated filers. Kojo explores the legal and practical challenges to filing Freedom of Information requests, and what you can expect from both federal and local authorities.

Guests

  • Thomas Blanton Director, National Security Archive at George Washington University
  • Miriam Nisbet Director, Office of Government Information Services at the National Archives and Records Administration
  • Daniel Metcalfe Executive Director, Collaboration on Government Secrecy at American University’s Washington College of Law

Transcript

  • 13:06:48

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's been a critical tool for prying open government, unmasking waste and understanding how policy is made.

  • 13:07:10

    MR. KOJO NNAMDIThe Freedom of Information Act or FOIA was first signed in 1966 by President Lyndon Johnson creating an avenue for journalists, activists and everyday citizens to demand government documents, correspondence and contracting information. But four years after President Obama pledged to lead the most transparent administration in history, government watchdogs say that promise is far from fulfilled.

  • 13:07:37

    MR. KOJO NNAMDIDespite a burgeoning backlog of FOIA requests, studies show that many government agencies have not met their legal obligations to keep citizens informed. Still, there is some new light streaming at the end of that tunnel and new resources available to get the information you need.

  • 13:07:53

    MR. KOJO NNAMDISo how can you better cut through the bureaucratic tape whenever you're filing a request? And how far have we come, have we really come, in making our government more transparent?

  • 13:08:02

    MR. KOJO NNAMDIHere to help us understand this is Tom Blanton, director of the National Security Archive at George Washington University. Tom, good to see you again.

  • 13:08:12

    MR. THOMAS BLANTONA pleasure to be with you, Kojo.

  • 13:08:13

    NNAMDIAlso with us in studio is Miriam Nisbet, director of the Office of Government Information Services at the National Archives and Records Administration. Miriam Nisbet, thank you for joining us.

  • 13:08:23

    MS. MIRIAM NISBETThank you, Kojo.

  • 13:08:24

    NNAMDIAlso with us is Daniel Metcalfe, executive director of the Collaboration on Government Secrecy at American University's Washington College of Law. He's a former director of the Office of Information Policy, which he created. Daniel Metcalfe, good to see you again.

  • 13:08:40

    MR. DANIEL METCALFEGood to be with you again, Kojo.

  • 13:08:41

    NNAMDIYou, too, can join this conversation. Call us at 800-433-8850. Have you ever filed a freedom of information, FOIA request? Did you get what you requested? 800-433-8850. Tom, on his first full day in office, President Barack Obama issued a memo on transparency and open government, which was supposed to fulfill his campaign promise to lead the "most transparent administration in history."

  • 13:09:10

    NNAMDIHis Attorney General, Eric Holder, followed up by urging federal agencies to get on board. So as head of the National Security Archive where freedom of information requests are your bread and butter, how would you evaluate government transparency over the past four years?

  • 13:09:26

    BLANTONPretty mixed.

  • 13:09:28

    NNAMDIA mixed review?

  • 13:09:28

    BLANTONPretty mixed, great declaratory policies, those day one announcements by the president and followed up by the attorney general were probably the best of any president in our history on open government. And you could see parts of the government saluting and carrying out the orders and other parts not paying any attention at all.

  • 13:09:51

    NNAMDINot too much.

  • 13:09:51

    BLANTONIt's sort of like -- I think at one point President Obama said it's like turning the wheel on a supertanker where he could turn the wheel over, but the boat takes a long time to kind of move over. But I think it's the wrong metaphor frankly because the government is not a supertanker, it's a flotilla and there are supertankers like the Defense Department, but there are rowboats, like the Merit Systems Protection Board.

  • 13:10:13

    BLANTONAnd in between, you've got cigarette boats and sailboats and sculls and you name it and getting all those folks to move together is sort of trying to get the East Germans' synchronized swimming team together without using steroids and it's not really doable, if you know what I mean.

  • 13:10:29

    BLANTONSo you can understand why a lot of agencies are lagging behind. The sad thing is that it's about half the agencies really are not up to speed even after four years.

  • 13:10:41

    NNAMDIAt least you didn't say herding cats. In December, you released a study that found that many agencies had not followed the law which required them to post their FOIA regulations on their websites. Tell us a little bit about that study and why you did it.

  • 13:10:51

    BLANTONWell, I want to give a shout out to Dan Metcalfe who was one of the folks who consulted with us on this. He had been in the Justice Department for many years and when he took a look at the results of our audit, which showed every one of the 99 federal agencies with their freedom of information regulations when they had last updated, and each time that Congress had changed the law or the president had changed the policy. And you see half the agencies haven't updated their own regulations even when Congress ordered them to.

  • 13:11:21

    BLANTONIs it any wonder that they don't pay attention when President Obama just issues a memo? Now, an updated regulation doesn't mean a good regulation. The Federal Reserve just updated its regulations just last year and gave people on appeal of a denial, stiffed, stonewalled, ten days to respond. Ridiculous.

  • 13:11:36

    BLANTONPeople should have at least as much time as the agency took to respond in the first place to get their response back. So, but a non-up-to-date regulation is a clear sign that the agencies just aren't paying attention. And it's a measure kind of of the bureaucratic resistance, I think, to open government.

  • 13:11:57

    NNAMDIWell, Dan Metcalfe, weren't we supposed to be making more progress and responding to FOIA requests at this point? After all, the Freedom of Information Act was reformed in 2007 to fix some of the more persistent problems in the FOIA system, including delays and lack of responsiveness.

  • 13:12:09

    METCALFEThat's very true, Kojo, but the reality has not quite matched not just the expectation, but the legal mandate. When Tom contacted me several months ago, it was sort of in the middle of the night and he was reaching out and saying, my goodness, Dan, my people are starting to look at this. Is it really -- can it be really as bad as it seems to be?

  • 13:12:29

    METCALFEAnd I said, yes, Tom, and in fact, it's even worse because the law that was amended required agencies in multiple respects to update their regulations in order to implement the administration of the law consistent with the changed terms. And it may take some agencies a matter of months or even more than a year to do so, but they should have started doing so in early 2008.

  • 13:12:58

    METCALFEThat was during the Bush administration, you might recall, and during that last year of the Bush administration, there was, shall we say, continued inattention to the Freedom of Information Act.

  • 13:13:12

    METCALFEUnfortunately, and inexplicably, that carried over into the Obama administration. And I'm sorry to say that it's the office that I created back in 1981 that is supposed to take the leadership role for encouraging agencies to do the right thing, to update their regulations, to reform their practices. And not only has it not done so, but it has not updated the Department of Justice's own regulations.

  • 13:13:37

    METCALFEThey were last updated when I was there before I retired six years ago and inexplicably today in 2013, the Justice Department itself has not implemented the 2007 FOIA amendments. And one asks if the presumed leader hasn't done so, well, how can one expect the, as Tom would say in his metaphor, the little rowboats and the medium-sized battleships in the flotilla to do so?

  • 13:14:03

    METCALFEThe solution I suggest now is with this new government-wide policy office on the landscape created by the 2007 amendments -- and that's the Office of Government Information Services founded by Miriam Nisbet.

  • 13:14:19

    NNAMDIIndeed, Miriam Nisbet, one of the big things the open government did, the Open Government Act did, was, as Dan pointed out, establish your office, which is now about three years old. Tell us about what the Office of Government Information Services does and how you're working to improve the FOIA process.

  • 13:14:37

    NISBETOur office is affectionately known as OGIS, yet another government acronym, but it seems to work. It's better than Office of Government Information Services, which, gosh, I get a lot of calls from people saying, I guess you're in charge of procuring all the information technology for the National Archives?

  • 13:14:51

    NISBETWell, I'm not. But we are here to play another role as you mentioned, which is really a dual role for the first time to bring dispute resolution to the federal Freedom of Information Act process, which we would say would definitely contribute to improving the culture, which I think is something that maybe gets lost a little bit when we start talking about cigarette boats and battleships and that sort of thing and that is to think about how big the federal FOIA process is.

  • 13:15:35

    NISBETThere are about 100 departments and agencies which, when broken down into components, bureaus and that sort of thing, are maybe 350 different agencies that are responding to FOIA requests.

  • 13:15:51

    NISBETThere are about 650,000 requests a year, which is an awful lot of requests and those just FOIA requests, not people asking for their own individual records. So it's a big process and our office was created by Congress to, as I said, bring dispute resolution and sort of bringing mediation to the dispute process for the first time.

  • 13:16:19

    NNAMDII'm glad you mentioned mediation because you seem to occupy a rather difficult space, if you will. On one hand, you're trying to get FOIA requests through government agencies more efficiently for the requesters. On the other hand, you must take the agencies' concerns into account when working on FOIA requests. How do you walk that fine line?

  • 13:16:40

    NISBETWell, we do it by trying to carry out really sort of two different and sometimes competing missions. Really, the law tells us to do two things. One is to bring dispute resolution to the process, which also agencies have a responsibility for that, too. That's a change in the law from 2007. And the second part is to look at agencies' policies, procedures and their compliance and make recommendations for improving the process.

  • 13:17:16

    NISBETSo we are walking a fine line. We are trying to help agencies figure out how to do it better and how to communicate better with requesters and at the same time, we're also being that neutral that listens to disputes and tries to work out a solution that everybody can live with.

  • 13:17:33

    NNAMDIOn a point of information one of the more notable achievements of your office has been the creation of the FOIA portal and FOIA Online, which debuted in October. Can you tell us how that site works and how it differs from foia.gov which is run by the Justice Department?

  • 13:17:48

    NISBETThe FOIA portal, which is called now FOIA Online.

  • 13:17:54

    NNAMDIYep, I pulled that up today and it told me what to do if I wanted to file a FOIA request.

  • 13:17:56

    NISBETGreat, and I hope you might consider trying it because it's an interesting and innovative approach. We certainly...

  • 13:18:05

    NNAMDIDepending on how much you reveal on this show, I may have to use it.

  • 13:18:08

    METCALFEWe sometimes say when it comes to FOIA requests, file early and file often.

  • 13:18:13

    NNAMDII hear you.

  • 13:18:16

    NISBETThe FOIA portal really was a brainchild of the Environmental Protection Agency so I want to give them a shout out. They came up with this idea several years ago and started talking to our office early on and several other agencies to see if there was a way really to create a platform, sort of a one-stop shop multi-agency portal so that people could go to one place and make requests and also see the records that were released in response to those requests so really sort of from beginning to end, the life cycle of a FOIA request.

  • 13:18:56

    NNAMDIAnd foia.gov?

  • 13:18:58

    NISBETFoia.gov is yet another resource on the web created by the U.S. Department of Justice. It has huge amounts of resources. It's where you can go to find out an awful lot about FOIA, but it's not exactly the same as the place for directly making a request. So I would say, between the two, they're quite complementary.

  • 13:19:20

    NNAMDIFOIA Online is the place for directly making requests, but which government agencies participate in FOIA Online?

  • 13:19:26

    NISBETWell, as you said, it just launched on October 1, and there are currently six agencies participating. Besides the EPA and the National Archives, we have the Department of Commerce, which was the other founding partner along with us and since then have joined the Federal Labor Relations Authority, the Merit Systems Protection Board and the Department of the Treasury.

  • 13:19:52

    NNAMDIBut the agencies that appear to get the most FOIA requests, the Department of Homeland Security, the Department of Defense, and the Department of Justice are not yet participating in this portal. What is the hang-up with them?

  • 13:20:04

    METCALFEWell, I'm going to interrupt Miriam here and say we actually have some good news there because at a law school just last month we had a program, an Obama Administration transparency assessment, our fifth now in a series. And we had a panel devoted to the FOIA portal. And when you combine what was said during that panel and what I learned privately from talking to people for purposes of enlisting participants in that panel, I know that there are other federal departments.

  • 13:20:37

    METCALFEI won't mention one by name, but it's initials are DHS. And there's another major department that you would recognize because the secretary of that department, she's about to leave office very soon. They are very actively...

  • 13:20:53

    NNAMDISuch difficult clues.

  • 13:20:54

    METCALFEYes. They are very actively...

  • 13:20:58

    NISBETYou're withholding information, Dan.

  • 13:20:59

    METCALFE...they're very actively considering joining up. It's only been since October 1 and I would dare say that if we have another panel at the law school looking at that next January we will have many, many more than just six agencies and departments sign up.

  • 13:21:17

    BLANTONLet me just throw in a couple examples here though from the rest of the world, because believe it or not, the rest of the world, some folks out there are way ahead of where we are.

  • 13:21:25

    NNAMDIMexico.

  • 13:21:26

    METCALFEAnd India actually. I was in the State of Bihar last year, one of the poorest places on earth with average per capita income in $100 -- 100 to $200 per person. What they set up in Bihar to make sure the right information was a real right was a 24/7 call center. Think about the call centers in India that are taking away business and running our airlines reservations. Well, they did one for the Right to Information law. The call comes in on -- because some -- even poorest people in India, many of them have access to cell phone -- the call center makes sure to get the request to the right place.

  • 13:21:58

    BLANTONIn our Freedom of Information system without the FOIA portal, it's up to the requester to get to the right place. And the way the Justice Department interprets the rules, the request doesn't even count, the clock doesn't start ticking until it's at the right place in the government. In Bihar, poorest place in the world, the call center makes sure it goes to the right place. Or in Mexico, as you just mentioned, Kojo, not only does the information commission -- the Information Institute of Mexico have the powers that we on the outside wish Miriam had, we wish that Miriam had the power to order agencies to release. They have judicial tribunal. She doesn't yet.

  • 13:22:32

    BLANTONWe have hopes. We'd like to convince Congress they better go there. Do at least as well as the Mexicans are doing on Freedom of Information. And then they created this online system infomax where the requests can come in through one place and the results get posted. I think that inspiration for the FOIA portal is a terrific model. We need to sort of check our own American pride and realize there's some better models around the world.

  • 13:22:54

    NNAMDIDan Metcalfe, do we have much more than hope? Because, as Tom pointed out, Mexico has an ombudsman office like Miriam's that has judicial power to get government agencies to follow Mexico's FOIA laws. What is the hope that we can have something similar here? I mean, what's behind the hope that we can have something similar here?

  • 13:23:13

    METCALFEWell, I think it is important to be hopeful, to look to the Obama Administration's second term as a far greater opportunity to deliver on the early promises and meet the very high expectations that everyone had following the Bush 43 administration. And a bright sign of hope is that President Obama himself has been the first president to reach out internationally. He did so in a speech before the General Assembly two years ago. And that led to the creation of something called the open government partnership, OGP for short.

  • 13:23:54

    METCALFEIt's an international entity or enterprise and the U.S. has played a very strong leadership role there. It's something that we cover at our annual -- we have an annual program on September 28 which is International Right to Know Day and we cover that extensively. And I think it's fair to say that in pushing other agencies to be more open, the Obama Administration has moved in the direction of other nations of the world. There are now 93. And maybe in the second term in maybe the second or the third year we will be emulating other nations where historically we have taught them. They have looked at us as a model, but now there are instances in which we're looking at them.

  • 13:24:43

    METCALFENot just Mexico and India, but other nations in Europe that are more enlightened, that are more electronically oriented, shall we say, where they can make requests as a matter of law electronically. And even in the United Kingdom, which has been catching up big time in the last five years, there are things that we can learn from that experience as well.

  • 13:25:06

    NNAMDIGot to take a short break. When we come back, we'd be happy to take your calls at 800-433-8850. Do you think the government should err on the side of openness or on the side of caution when citizens request inside information so to speak, 800-433-8850? You can send email to kojo@wamu.org. Send us a Tweet at kojoshow or simply go to our website kojoshow.org and join the conversation there. If you've already called, hang on the line. We will get to your call. I'm Kojo Nnamdi.

  • 13:27:10

    NNAMDIWelcome back to our conversation on FOIA, that is the Freedom of Information Act and government transparency. We're talking with Miriam Nisbet, director of the Office of Government Information Services at the National Archives and Records Administration. Tom Blanton is director of the National Security Archive at George Washington University. Daniel Metcalfe is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law.

  • 13:27:36

    NNAMDIAnd joining us now in studio is Michael Pope, Northern Virginia reporter for WAMU and a political reporter for the Connection Newspapers. Michael Pope, thank you for joining us.

  • 13:27:45

    MR. MICHAEL POPEThank you.

  • 13:27:46

    NNAMDIYou too can join us, the conversation that is, at 800-433-8850. Do you think the government should err on the side of openness or caution when citizens request inside information? Before I get to the telephones, Miriam Nisbet, you know, there are a lot of FOIA requests. Federal agencies receive more than 640,000 -- I think you mentioned that number earlier -- freedom of information requests in the fiscal year 2011, which is 8 percent more than the year before. Do federal agencies really have the resources to process these requests?

  • 13:28:20

    NISBETWell, they certainly do vary in their ability to do so, and it depends on the size of the department or agency. And it depends on something that we were talking about at the very beginning of the show, Kojo, and that is leadership. We've certainly seen where agencies have someone at the top who says the Freedom for Information Act is an important part of the way the government does its business on the central part and wants to make it a priority. Things amazingly happen. But it is a struggle. In this budgetary environment agencies are really hard pressed to be able to give the resources needed. And the numbers are increasing every year.

  • 13:29:05

    NNAMDIThere's a huge backlog, Dan, of FOIA requests, more than 83,000 in fiscal 2011 alone, and about this time last year during the government's sunshine week, Attorney General Eric Holder released statistics on how his department had reduced its backlog. You called the figures grossly wrong but you may have an update.

  • 13:29:25

    METCALFEWell, they were indeed grossly wrong in how they were calculated back then. But I do have an update in so far as the next year's figures have just been released. This is for the department of justice in particular. And to be specific these are the figures for the fiscal year 2012 year. And unfortunately it shows that first and foremost the Department of Justice's total backlog -- by that I mean to say the numbers of pending requests at any particular time -- jumped from 7,074 to 7,999 during that fiscal year, which is an increase of what. It looks like 925...

  • 13:30:16

    BLANTON...13 percent.

  • 13:30:18

    METCALFE...and on a percentage basis that's an increase of 13 percent in just this last year beyond where things stood previously. Now, one has to look at what that means in relation to the standard that was set by President Obama during the first year of his presidency. And this specifically was the open government directive, sometimes called the OGD for short, because here within the beltway we need our abbreviations. And in the open government directive, which was issued December 8, 2009, president Obama called for each federal agency to reduce its pending backlog of FOIA requests by 10 percent each year, so 10 percent the next year, 10 additional percent the year after that and so forth.

  • 13:31:12

    METCALFEAnd when the lead agency for government-wide FOIA policy responsibility and administration fails to meet that so poorly, so badly, that just sets a terrible example for the rest of the government. And I'm in a position to speak to that because I headed that office for more than 25 years. And I knew full well the phrase we sometimes would use, Caesar's wife position that we had to take. We had to be the leader in order to expect others to attach credibility to what we said and to follow us.

  • 13:31:49

    METCALFEAnd when the leader not only can't meet the requirement, but is so grossly far off of that requirement, I can tell you firsthand that can have a tremendously negative psychological effect.

  • 13:32:05

    NNAMDII want to get to the telephones because Bert in Washington, D.C. has an issue that I think, Tom Blanton, you may want to address. Bert, you're on the air. Go ahead, please.

  • 13:32:14

    BERTYes. It's an informative show, but I don't think you're really getting to the main issue when it comes to the role of FOIA.

  • 13:32:22

    NNAMDIThat's why we have you, Bert.

  • 13:32:23

    BERTMiss Nisbet and Mr. Metcalfe have done great work but what they've been discussing in this show, the questions of resources, throughput, backlog, the real question is government secrecy. Secretary Defense Rumsfeld, not a big liberal, and many others have said we have maybe 50 percent of our classified stuff which shouldn't be. And they -- you asked whether it was more important or people thought the government should lean to openness or closure. And I remind you that the essence of democracy, the requirement of a democracy is an informed public.

  • 13:33:03

    BERTAnd that's the area where Tom Blanton's been doing such great work. Because when it comes to what the Obama Administration has done with regard to information they don't mind getting out, they've done a lot of improvements with speeches and regulations and new offices. But when it comes to information they want to hide, the practitioners who come to Metcalfe's annual assessments have made clear they're as bad or worse than previous administrations. And there are many, many examples.

  • 13:33:39

    BERTBut the best one is the opinions used by the office of legal counsel like justice to justify the legality...

  • 13:33:50

    NNAMDIBert, you've made your case and I'd like to have both Tom Blanton and Dan Metcalfe respond to you, that when the government wants to hide something -- and Miriam would like to respond also, so I'll start with you, Tom.

  • 13:34:00

    BLANTONI'd say the caller's right in his larger point and it goes to what Miriam was saying about the culture. Within the bureaucratic culture you're only risk comes from openness. You're not risking your rear end if you keep it secret and keep it in the vault and keep it in your desk, right. Your risk is by being part of a democracy where you've actually got to be accountable. And that's risky. And it's hard for them and it's hard for us because it takes a lot of pressure from us.

  • 13:34:26

    BLANTONWhere I think the caller's off base is claiming that the Obama Administration is worse -- as bad or worse. That's objectively not true. The Obama Administration solved a series of major secrecy battles that we and others have fought for decades. He declassified -- now declassifies routinely the national intelligence budget, which was maybe the biggest single secrecy fetish. He declassified the nuclear stockpile which has held up release of all these historical -- even the deployment of missiles during the Cuban missile crisis. You can't get those documents because they're that old.

  • 13:34:58

    BLANTONHe settled the White House visitor logs case. He settled the White House email case. Wherever the president and the White House has been at the center of it, the decisions -- the policy decisions have been significantly better. Presidential records, he got rid of Bush's restrictive rules and presidential records. The problem is those decisions haven't gotten down to the secure-acrats.

  • 13:35:18

    BLANTONThere are very few agencies in the national security arena that are remotely as progressive as the Environmental Protection Agency. Because none of those folks understand that part of their mission of protecting a democracy is informing the public so we can help protect ourselves. I mean, when you got to -- everybody's talking about cyber security and you just probably mentioned it in your Tech Tuesday, Kojo. You certainly had shows on it. How do you protect from hackers and viruses?

  • 13:35:42

    BLANTONWell, you don't do it in a closed classified environment where only the hacker and somebody at the national security agency at Fort Lee knows about it. No. You publish the fact that there's a virus, there's an attack. People can take their own measures to protect their own computers and they can pitch in on making the fix, the patch. That's what a distributed information world needs for security. Openness is security.

  • 13:36:04

    NNAMDIDan Metcalfe.

  • 13:36:05

    METCALFEI feel obliged to tell this caller that he's more correct than Tom Blanton might lead him to believe. in a very particular way. Because that early day one memorandum that we spoke of, President Obama right on January 21 told the Attorney General to issue a memorandum which is what we've always called the FOIA -- A. J. FOIA memorandum, and he did so. And he adopted a standard of FOIA decision making, both in litigation and at the administrative level, that we'd set up for Janet Reno back in the Clinton Administration.

  • 13:36:40

    METCALFEThat standard is the foreseeable harm test which works together with the idea of discretionary disclosure. Now that standard was articulated in March of 2019 but the public interest community...

  • 13:36:55

    NNAMDIMarch of 2009.

  • 13:36:56

    METCALFEPardon me, March of 2009. Yes, it's more recent than that to be sure. And the public government openness community has been waiting for evidence -- concrete evidence of that being implemented. There's no evidence of it being implemented in litigation and there's little if any evidence of it being implemented, certainly not comprehensively at the administration level. And because of that, when you get down to agency decision making, what's disclosed, what's not disclosed, and not just classification national security, but across the board. This administration has not nearly meet the expectations that were held of it.

  • 13:37:36

    NNAMDIMiriam.

  • 13:37:37

    NISBETThere's -- certainly FOIA is -- I would be the first to say FOIA is one of the key pieces of the way an open government should work. And we love it. We were one of the first countries to have it. And a lot of countries, as Dan mentioned, have looked to us just as we also look to other countries for their good ideas and their models. But the Freedom of Information Act, I think most people would agree, is not the most efficient way to get information. It works a lot better when the government just proactively discloses information as it goes along.

  • 13:38:13

    NISBETAnd that is a big piece and I think that is something that absolutely this administration needs to get credit for. Because the efforts on data.gov, the other open government initiatives have really made a difference in having agencies thinking about making information available without waiting for a request to come in, which leads me to a second point that I would like to make about technology. And that is something that we would -- I'd love to hear from your listeners about, Kojo.

  • 13:38:44

    NNAMDI800-433-8850, that's how we can hear from you. Go ahead.

  • 13:38:48

    NISBETAnd that is really something that I think a lot of agencies are working on now, or beginning to work on, and that is figuring out how to build in the openness from the beginning when you're bringing in these huge amounts of data. Build your databases so that when the time comes, whether it's next week or next month or in ten years, you can easily release the data and still protect whatever little bit of information needs to be protected, say for privacy reasons.

  • 13:39:20

    NISBETSo building in that openness from the beginning so that people don't have to ask for it is really hopefully the way we're going to go.

  • 13:39:29

    BLANTONAnd that's really the only answer to your resource question, Kojo, because the answer is federal agencies don't have the resources to deal with those requests. And the only way out of that resource trap is to do what Miriam is recommending, proactively post this material. Let people -- so you can send people a URL and they can find it. That's the way out. Otherwise we're using freedom of information as a routine way to connect with our government when it should be reserved just for the contested areas.

  • 13:39:55

    NNAMDIWe've been talking about some of the changes we've seen in the Freedom of Information Act at the federal level. I'd like to talk about some of the practical issues that still exist when you try to get information from your government, whether that's at the federal or the local level. We're going to take a short break. When we come back, Michael Pope will share some of his experiences getting FOIA requests out of the Commonwealth of Virginia. You can still call us, 800-433-8850 or send email to kojo@wamu.org.

  • 13:40:21

    NNAMDIWhen is secrecy legitimate and necessary? When is it our right to know. 800-433-8850. I'm Kojo Nnamdi.

  • 13:42:09

    NNAMDIWelcome back to our conversation about FOIA, the Freedom of Information Act and government transparency. We're talking with Daniel Metcalfe, executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law, Miriam Nisbet is director of the Office of Government Information Services at the National Archives and Records Administration, Tom Blanton is director of the National Security Archive at George Washington University and Michael Pope is Northern Virginia reporter for WAMU and a political reporter for the Connection Newspapers.

  • 13:42:39

    NNAMDIMichael, I want to talk a little bit about your experiences filing FOIA requests in the Commonwealth of Virginia. This is something that you have been doing for quite a while. I want to talk about what your experience has been. You joined us in July to talk about some of the hurdles you face when you file those requests, especially with law enforcement agencies. Tell us a little bit about how you use FOIA in your work as a reporter in Virginia.

  • 13:43:05

    POPEWell, to be totally honest, Kojo, I try not to use FOIA. I like to call people up and ask for documents and hope they send them to me. And FOIA is something that I use as a last resort when the government agency says that's the only way to get documents. Other than that, the issue with the police, specifically, and law enforcement agencies is that they have a very broad exemption in the Virginia Freedom of Information Act, which gives them the ability to withhold--and I've got the list here in front of me--this is the list of things that they're exempt from giving to people.

  • 13:43:44

    POPE"Complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements and evidence." So that's everything. So if you're trying to get a garden variety document on the burglary that took place in your neighborhood you can't. They won't give it to you. They will give you a summary of the document they're not giving you, which is called a criminal incident information, which is very sort of bare bones. You know, the date that it happened, the general location, that sort of thing. But this list that I just read here from the Virginia Freedom of Information Act, gives law enforcement agencies broad authority to withhold almost anything.

  • 13:44:25

    NNAMDIWell, as a member of the news media are you exempt from paying fees when you request information?

  • 13:44:30

    POPEI wish I was. No, I’m not. So I have had different experiences with different governments. The government in Alexandria, for example, is very good about handing over huge amounts of information. I did a story about an environmental issue once. And so I submitted a FOIA request for all kinds of documents and correspondence. And they gave me a box full of paper. I mean a huge box. And another example, I FOIA'd emails of school board members. And again, they gave me a box of email correspondence from the school board members. They gave it to me for free. They did not charge me.

  • 13:45:07

    POPEArlington takes a very different way of looking at this. I did a FOIA request for all of the FOIA requests to the Arlington Police Department and got a bill from Arlington County Police Department of $580. So that's dissuaded me from submitting the FOIA request. There was another situation involving a police shooting where a Fairfax County police officer shot and killed an individual in Arlington. Arlington conducted the investigation. And so I submitted a FOIA request for the criminal incident information. This is the summary I was talking about earlier of the document they're not going to give you.

  • 13:45:48

    POPEArlington wanted to charge me $30 for the one page criminal incident information. So, you know, with these two examples we see that the charging certainly has the ability to dissuade journalists from receiving information.

  • 13:46:10

    NNAMDITom Blanton, the definition of who constitutes the news media is constantly changing in our wired world. And it's a definition the National Security Archive had to confirm in court in order for you not to pay huge fees to do your work. So who exactly is exempt from paying fees?

  • 13:46:27

    MR. TOM BLANTONWell, the case we won established that we were a representative of the news media under the federal law which gives a waiver of processing review fees to representatives of the news media. I think the current set of issues around fees are twofold. One, just as Michael said, I think it's the number one tool that federal bureaucrats actually use--and I've heard this phrase at training sessions of federal bureaucrats administering freedom of information--to manage their caseload. And they don't consider a request to be "perfected" until you've established your fee status, representatives of the news media, educational, commercial or a private person.

  • 13:47:09

    MR. TOM BLANTONAnd so in this way they send you away. If you're an ordinary citizen you'll get these letters. We know, even though our case was decided in 1989, that we get a waiver of fees. We still get these letters from people like Homeland Security and others. Well, we estimate this is going to cost $37,000 to search and review these documents. And clearly the intent of the letter is to make us go away. I can only guess what happens to the ordinary citizen from Louisiana, my old home town, who writes in asking for, well, what about the Corps of Engineers work on the levies? You know, was that going to prevent the next Katrina or not? And they're going to say, well, this is going to cost you $45,000.

  • 13:47:47

    MR. TOM BLANTONWhat happens? You go away. And actually the Freedom of Information request never gets recorded in Miriam's or the Department of Justice statistics. So we tell them, call Miriam.

  • 13:47:55

    NNAMDIMiriam, we got an email from someone who wishes to remain anonymous who says, "I've been told that people who file FOIA requests will be branded as troublemakers because the requests are not kept confidential. Is this true?"

  • 13:48:08

    NISBETWell, I'm not entirely sure where that question is going, but certainly making a FOIA request is--and gosh, I'm going to look at Tom when I say this--is a very honorable position to be in.

  • 13:48:23

    BLANTONAnd very public.

  • 13:48:24

    NNAMDIYes, yes.

  • 13:48:25

    NISBETAnd it is public in a sense that if you, for example, Kojo, were to ask any department or agency for the FOIA requests that have been made to it, the agency would have to tell you, which is a really good thing because there is nothing sort of private about asking for something that anyone can ask for. And if it's available to you, it's available to the world.

  • 13:48:53

    NNAMDIAnd Michael I think has a question that you, Dan Metcalfe, may want to answer. Michael, you're on the air. Go ahead, please.

  • 13:49:00

    MICHAELYes. Through the advancement of my level of employee by linked to their FOIA requests.

  • 13:49:12

    NNAMDITo how well they implement FOIA. Michael also sent us an email to that affect. Dan Metcalfe?

  • 13:49:18

    MR. DAN METCALFEWell, the best way to implement the act of course is following the law. The current law, so make sure you have your regulations that are up to date. And then use the best substantive guidance you can get as to the contour of FOIA exemptions, what to release, what not to release. And the best procedural guidance you can get. Lately, coming from the Office of Government Information Services, which gives tremendous practice tips to FOIA officers. I do feel obliged to make one…

  • 13:49:45

    NNAMDIBut in the case of Michael's question, should the response to FOIA be a part of the evaluation process for high-level employees?

  • 13:49:53

    METCALFERight. That's something that began under former Attorney General Reno and it was something that was implemented within the Department of Justice and recommended for other federal agencies and it sort of fell by the wayside during the Bush administration. And I don't know that it has been reinstituted with quite the vigor in the Obama administration, but it certainly is a positive way of influencing FOIA action. I want to just correct something earlier with respect to an individual's access to the fact that requests have been made by others.

  • 13:50:28

    METCALFEThere's a major exception for that. And that is if a request is made for records about oneself, what we would call a first-party request, those are indeed private. So if an individual, such as was suggested by that--it was not a caller, it was someone on email--was worried about being branded as a whistleblower or as a troublemaker and was trying to get records within his own agency about himself, that fact, that abstract fact is confidential. Any of your listeners out there who are federal employees who want to make requests of an agency, their own agency very largely, for records about themselves should be able to do so without that fact being known elsewhere within the agency, unless what the Privacy Act of 1974 would say, is an official need-to-know basis.

  • 13:51:24

    NNAMDIMiriam Nisbet?

  • 13:51:25

    NISBETThat is a very clear distinction that's been around for a long time. So thanks for that clarification, Dan.

  • 13:51:30

    METCALFEYes.

  • 13:51:32

    NISBETIf you're asking for records about yourself, that is very much considered differently from a true Freedom of Information Act request. But the other thing I did want to respond to Michael's email and his question and that is to point out with the 2007 amendments to the Freedom of Information Act, the same amendments that created the Office of Government Information Services, there is now, as part of the statute, a position called the chief FOIA officer that every department and agency has to have, whose responsibility is ensuring that the law is implemented, that best practices are followed and also that there is a new position in the law to assist in resolving disputes.

  • 13:52:19

    NNAMDIMichael Pope, what recourse do you have at the local level when a FOIA request is rejected?

  • 13:52:26

    POPERecourse is that there is an ability to file an appeal. I'll have to admit that I have personally been negligent there because when I got this bill for $580 from the Arlington County Police Department I suppose I could have appealed that, I did not. I just sort of moved on to my next story. But I did cover a case where a law firm was trying to get an incident report. This is in a murder case. And the local police department that was in Alexandria denied the FOIA request for the incident report to the lawyer of the family. And so the law firm filed an appeal of that decision to the--I think it was the city attorney's office, who decided to hand over the document.

  • 13:53:15

    POPESo there is recourse when your FOIA is denied and you can sort of take it up a level.

  • 13:53:21

    NNAMDIDan, there was an interesting New York Times article last year that led with the question, is a FOIA delayed a FOIA denied? Apparently the Times received a final response from the Defense Department two a FOIA request it made 15 years earlier. And the response was, one might note, sent priority overnight. So is a FOIA delayed a FOIA denied? And is it legal to wait months or even years for a response?

  • 13:53:44

    METCALFEOkay. I'll take that question in its two parts. First, yes, FOIA disclosure delayed is FOIA disclosure denied, just as justice delayed is justice denied. And what you've done, Kojo, is put your finger on another primary angle of what we call the backlog problem because it's not just that there are long lines at agencies. It's what the consequence would be that, in some cases, when a request is finally reached in line and finally processed to completion and the disclosure takes place, that occurs long, long after when the request was filed. And you've cited an example of that. There have been extreme cases in which disclosures have been made many, many years after the time of the request.

  • 13:54:31

    BLANTONTwenty years even.

  • 13:54:32

    NNAMDII was about to ask Tom, what are some of the oldest?

  • 13:54:33

    BLANTONWe've had our oldest was probably 20 years. In a couple of audits we found ones that were 20 years old.

  • 13:54:37

    METCALFEAnd for journalists in particular, without any question, when journalists are working on deadline, even if they're not day-to-day journalists, but investigative reporters, they still will have a time frame, if not day-to-day or week-to-week, still much shorter than sometimes fits the responses they get.

  • 13:54:55

    NNAMDIThey don't often get to work on stories for 20 years.

  • 13:54:57

    METCALFEYes.

  • 13:54:58

    BLANTONYeah, I have two examples of a delay that caused me problems. One is a story that I was working on involving a civil rights complaint. I was going to be on the air, for all things considered, that afternoon. And so I needed the document right then. I submitted a FOIA and got it like a week and a half later, at which case it was old news. Another more interesting example though, when I was in graduate school I submitted a FOIA request for the FBI file of a civil rights leader in Tallahassee. I'm sure many of your listeners are familiar with the Montgomery bus boycott.

  • 13:55:34

    BLANTONThere was a Tallahassee bus boycott going on simultaneously. And so I was trying to get the potential FBI file, if there was one, on the civil rights leader who was leading the Tallahassee bus boycott in 1956. Relatively confident there was an FBI file. A year and a half later…

  • 13:55:51

    METCALFEThat's a safe bet, yes.

  • 13:55:52

    BLANTONA year and a half later I get a response letter saying that there was no file and that I wouldn't be receiving anything. And so I was a little bit upset that they said that there was no file because I have this gut feeling that there probably was a file, but even more to the point, I was kind of happy that I didn't get a document because my master's thesis was done. It had been bound. It was…

  • 13:56:17

    BLANTONYou didn't have to do a rewrite.

  • 13:56:18

    POPEIt was on the shelf in the library. It's collecting dust on the shelf in the Robert Manning Strozier Library in Tallahassee.

  • 13:56:23

    NNAMDIThere have been many FOIA requests to release the pictures of the raid on Osama bin Laden's compound. What are the prospects for that?

  • 13:56:33

    BLANTONRight now it's in court and you have judicial watch bringing the case. And I think they're going to have a hard time because under the rules set by the courts the CIA comes in with it's in-camera affidavit, which means the public doesn't get to see them and even the plaintiff doesn't get to see them, and tell the judge, hey, you can't release this. It gives away our secrets. Well, CIA and others briefed the filmmakers of "Zero Dark Thirty" in some great detail. And one of the interesting byproducts of FOIA requests are the emails back and forth among the Pentagon and the White House and the CIA about what they're going to say to the filmmakers and how much information they gave.

  • 13:57:06

    BLANTONOf course the agencies all got blasted by members of the Congress. Oh, they're leaking classified information. I think the opposite. I think they should have given those briefings publicly, not just to the filmmakers.

  • 13:57:15

    NNAMDIThirty seconds.

  • 13:57:16

    METCALFEKojo, I have to once again disagree with Tom. The case is pending in court. It has been argued before the Court of Appeals, but the decision issued by the District Court judge will be reversed on procedural grounds because they did not deal with the statutory obligation of segreability. Portions of those 51 images and one video tape should be disclosed.

  • 13:57:35

    BLANTONThis is good news.

  • 13:57:35

    NNAMDIMiriam Nisbet, you get the last word.

  • 13:57:39

    NISBETThank you. Three words of practical advice. One, call your FOIA officer and have a conversation.

  • 13:57:46

    BLANTONAmen.

  • 13:57:46

    NISBETTwo, use your appeal rights. And three, if all else fails, call OGIS.

  • 13:57:53

    METCALFEYes. I would move number three up to number two.

  • 13:57:57

    BLANTONAnd I would add a (word?).

  • 13:57:57

    METCALFEYes.

  • 13:57:57

    NNAMDIMiriam Nisbet is the…

  • 13:57:58

    BLANTONDo your research before you file your request.

  • 13:58:01

    NNAMDIMiriam Nisbet is the director of the afore mentioned OGIS, the Office of Government Information Services of the National Archives and Records Administration. Tom Blanton is director of the National Security Archive at George Washington University. Daniel Metcalfe is executive director of the Collaboration on Government Secrecy at American University's Washington College of Law. And Michael Pope is Northern Virginia reporter for WAMU and a political reporter for the Connection Newspapers. Thank you all for joining us. And thank you all for listening. I'm Kojo Nnamdi.

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