Update to My Requests for Agencies' Ten Oldest FOIA Requests

And a few interesting things

Few things make me happier than receiving an email full of internal government records. These days, I take it as proof that the government still works even in spite of news to the contrary. Unfortunately, I might have to wait a little longer.

About a month ago I requested from several agencies their ten oldest FOIA requests and their ten oldest FOIA consultations. I have not received any documents back, but I have received some correspondence.

As I mentioned in the earlier post, transparency is what we need in order to be great citizens. We need to know something about what we’re voting for and how our government is working. In order to test which government agencies were responding promptly to FOIA requests, I submitted my FOIA requests for copies of the ten oldest requests to a dozen top agencies and components as a type of litmus test for how seriously government agencies are taking their FOIA program.

At the time I hoped the requests would allow me to see which agencies are becoming more transparent and open, and which ones aren’t.

Today, part of me hopes to continue these requests next year and the year after etc. And maybe it might even help agencies get better at responding to requests. If they know that at least one plucky someone is looking at how well they are managing their FOIA caseload, perhaps next year they’ll throw a few extra dollars at their FOIA coordinator.

I Requested Agencies' Ten Oldest Open FOIA Requests

I was inspired by the Knight Foundation’s Survey, which included upwards of 30 agencies and agency components, which unfortunately has languished in the last ten or so years.

All that said, let’s get into some of the stuff I got back.

As a general rule, I was not granted the complete fee waiver I requested. However, I ended up falling into most agencies’ “Other” track. For example, here is the Bureau of Land Management’s response.

The major exception was U.S. Department of Health and Human Services.

Congress charged the Office of Management and Budget with the responsibility of providing a "uniform schedule of fees" for agencies to follow when promulgating their FOIA fee regulations. OMB did so in its Uniform Freedom of Information Act Fee Schedule and Guidelines.

Without being super reductive, there are three categories:

• Category 1 – Commercial Use Requester. Category 1 requesters are charged for search time, documents review, and duplication.

• Category 2 – Media, Educational, and Scientific Requester. Category 2 requesters are charged for duplication only after the first 100 pages.

• Category 3 – Other Requester. Category 3 requesters are charged for search time (after 2 hours) and duplication (after 100 pages).

For the most part, agencies threw me in the ‘Other Requestor’ category because I didn’t have a commercial use and yet agencies were seemingly reluctant to include me in the category for media requestors.

Naturally, here’s my plug for OMB’s own words from the Federal Register explaining how broad “media” is.

In the day and age where ‘everyone’ can create something with general circulation and a few subscribers, there is certainly an argument that OMB needs some updating. However, as far as I know, OMB is still riding with their old definition of what constitutes media.

The digression begs the question, should I try and appeal the determination? An appeal wouldn’t be frivolous, at least with the Department of Health and Human Services, because I do not have a commercial purpose and I can demonstrate a very bare satisfaction of OMB’s requirements. Yet at the same time I find it hard to believe HHS will exceed the amount of time that’d they need to pass to bill me in the first place.

Finally, a few other odd’s and end’s from the responses I’ve received back that I noticed.

First, of the requests I sent, DOE was the only agency who explicitly referenced that they are using the acknowledgement time to actually determine if my FOIA request is a “request.”

At first glance, the detail is not consequential. However, I wonder why more agencies weren’t clear that FOIA allows agencies to summarily reject requests for not being requests. For example, requests are not valid requests for documents, but invalid demands for agencies to do research for the requestor, if the request does not “reasonably identify” documents. i.e., ‘I want these documents,’ v. ‘tell me what these documents mean.’

I suppose the end result is the same, but one of the biggest helps we’ve implemented in the City is editing our responses so we are guiding and educating requests as they make requests. Not only does the wordage explaining each discrete step in our analysis make requestors more knowledgeable, but clearer requests mean easier requests to fulfill.

Do some agencies just deny requests without ever really explaining why?

Second, the Environmental Protection Agency has the best website for requesting records and tracking requests.

You can see your history, modify your request like adding an additional justification for expediting the request, and you can see what fees have been charged.

The EPA should just get into the game of being a consultant for everybody else.

Third, I did send a few requests to odd components sort of in contradiction to what I claimed I’d do in my original post.

In the above screenshot my request is to the Barack Obama Presidential Library, which is a component of the National Archives and Records Administration. For the record (ba-dum tisch!), I also sent a request to NARA itself so now they have two.

I bring it forward simply as an interesting note for how some components have an unofficially official policy of not handling FOIA programmatic requests, but instead stay in their lane and if someone like me comes along they bump it to the central office. The Richland Operations Office of the DOE did the same thing. The Advisory Council on Historic Preservation did the same.

And that’s all I have! A little short this Saturday, but unfortunately this long weekend is flying by.