Posted on 22 July 2013.
In keeping with our mission, PRM aspires to be a comprehensive requester of public records. We not only submit a wide variety of data requests to government agencies, but we also pursue each through to its resolution, in order to ensure the integrity of Freedom of Information (FOI) processes at both the state and federal level.
The ways in which FOI requests resolve vary widely. Sometimes, agencies fulfill their statutory obligations without outside prompting. Our experience has shown that Minnesota state agencies fall into this category more often than not. At the same time, it should be noted that other requesters that we correspond with have encountered frequent problems with some of Minnesota’s county and municipal entities.
At the federal level, agency compliance with the Freedom of Information Act (the FOIA) – is fairly scattershot. While the statute affords twenty (and sometimes thirty) working days for federal agencies to respond to FOIA requests, experience demonstrates that very few of those agencies either choose, or are able, to comply with this timeframe. A variety of factors account for this, ranging from agency resistance to information release, to increased staff work-loads, to reductions in funding.
When agencies fail to respond in a timely fashion, FOIA requesters have the option of filing an administrative appeal with the agency, or going to district court to force compliance. As an example, PRM used both the administrative and litigation tracks to obtain documents from the U.S. Department of Health and Human Services after a response delay of nearly eleven months.
Litigation is costly and time consuming, and many requesters (particularly individual requesters) are not able to muster the resources to undertake it. In some instances, litigation is also ill-matched to the situation, particularly when a requester is dealing with an agency whose compliance issues have arisen from over-work, rather than from institutional recalcitrance.
The role of OGIS
In light of the importance of the FOIA to democratic governance – and in recognition of the growing need for improvements in FOIA compliance – Congress created the Office of Government Information Services (OGIS) as part of its 2007 amendments to the Freedom of Information Act. OGIS is housed within the National Archives and Records Administration (NARA), and it helps to mediate disputes between FOIA requesters and federal agencies.
OGIS describes itself as a “FOIA resource,” and stakes out a position as a neutral party between requesters and the government, seeking to resolve disputes over FOIA implementation. According to the Reporters’ Committee for Freedom of the Press, OGIS is most helpful in resolving processing delays after administrative appeals have been filed. This is just the kind of scenario under which we approached OGIS for assistance in December of last year.
2010 Coast Guard request
During our first full year of operation, PRM submitted a FOIA request to the U.S. Coast Guard that sought contracts between that agency and the private security firm Talon Security. In footage aired by New Orleans television station WDSU, individuals claiming to work for a company called “Talon Security” prevented a WDSU reporter from speaking with workers participating in clean-up efforts related to the BP oil spill. PRM sent FOIA requests to federal agencies that had been active in and around the spill site in order to determine whether they had contracted with the “Talon” firm to enhance site security.
We sent a request to the U.S. Coast Guard in June of 2010, and received an acknowledgment letter roughly a month later. By March of 2011, however, we had received no additional correspondence about our FOIA request, and so we proceeded to file an administrative appeal.
DHS “political vetting” allegations
Earlier that same month, the Associated Press had published an article alleging that the Department of Homeland Security (of which the Coast Guard is a component) had been involved in the “political vetting” of certain FOIA requesters, and had delayed FOIA responses as a result. The allegations made in the article – coupled with the eight-month delay in the response to our FOIA request – made us curious about whether our Coast Guard request had been pulled into the DHS vetting operation.
On March 28, 2011, we sent another FOIA request to the Coast Guard (and a related request to DHS) that sought information about whether PRM’s “Talon Security” request had been the subject of political review by DHS. The Coast Guard did not acknowledge the receipt of this second request. DHS, on the other hand, did respond, and sent us a small number of responsive documents, including a transfer memo that referred the DHS FOIA request back to the Coast Guard. (We will have a future, follow-up post on this DHS request available soon.)
On July 19, 2011, D.G. Taylor of the U.S. Coast Guard wrote to us and stated that in the course of reviewing our June 24, 2010 request, his agency had determined that the request had not been “received by the appropriate unit” of the Coast Guard. He also noted that he had subsequently forwarded the request to the Guard’s Deepwater Horizons records unit, as well as to the Office of General Law. Following Mr. Taylor’s June 19 letter, we did not receive any further correspondence.
On December 27, 2012, we sent a letter to OGIS, seeking assistance with our 2010 FOIA request. At that point, our initial request was over two years old, and was still unresolved. Our OGIS inquiry sought a final response to our initial FOIA request regarding the existence of any “Talon Security” contracts.
OGIS responded rapidly – by January 2, 2013– and opened a case file later that month.
The OGIS process
In its initial communications, OGIS clarified that it had no power to compel the Coast Guard to produce records, and stressed that it would essentially provide mediation services within the context of the existing FOIA process.
We were not privy to the details of how OGIS interfaced with the Coast Guard, but OGIS personnel stayed in semi-regular contact, and kept us informed about their progress in communicating with the agency. By May 16, 2013, OGIS reported that the Coast Guard was ready to issue a response, which they anticipated sending early the next month. That response arrived in mid-June, and was dated June 18, 2013. However, the Coast Guard’s response letter addressed our March 28, 2011 request, but not the FOIA request that spurred the OGIS case – our June 2010 request for contracts with Talon Security. OGIS re-engaged with the Coast Guard, and the agency issued a final response to our 2010 request on July 17, 2013. That letter indicated that the Coast Guard did not hold responsive records.
The three-year process of obtaining a response from the Coast Guard has provided several lessons on the FOIA front. The first is the great variability in FOIA service between federal agencies and their components. While the Coast Guard took over three years to respond to our request, the U.S. Fish and Wildlife Service responded to an almost identical request in just under two months.
Part of this difference, doubtlessly, lies in the volume of requests received by each component. As noted in a 2012 DHS FOIA report, that agency received 138,651 requests in 2010, with Coast Guard requests accounting for 4102 of the total. In comparison, Fish and Wildlife received just 1241 requests during the same time frame, according to FOIA.gov. It should be noted that DHS has since posted an increase in both its overall number FOIA requests, as well as its overall FOIA backlog. High request volumes do not release agencies from their statutory obligations, of course, but their existence is something that Congress should heed as it strives to increase FOIA compliance.
A second lesson drawn from this experience has been the utility of OGIS as an intermediary in the FOIA process. Prior to our contact with OGIS, over a year and a half had passed since we had submitted our administrative appeal to the Coast Guard, and well over two years had elapsed since we mailed our initial request. After OGIS became involved, we received a final response in just over five months.
While we have used litigation to force agency compliance in the past (and likely will do so again in the future), OGIS proved to be a valuable resource that obviated the need litigation in this situation. Its utility should be noted by other requesters who are faced with similar types of delays or compliance problems.
NOTE – This post initially listed the date of PRM’s second FOIA request to the Coast Guard as May 28, 2011. The actual date was March 28, 2011. The post has been updated to reflect the correction.