Freedom of Information in a Digital Age

Nick Sinai
Oct 8, 2016 · 6 min read

In addition to relying on email, Federal employees are increasingly using digital tools like Slack, GitHub, and Trello in their official duties. It raises a number of questions:

  • What are the practical realities of Freedom of Information Act (FOIA) in an era of ubiquitous email? What can be done to make FOIA easier for requester and government agency alike?
  • As some have provocatively argued recently, should email be exempted from FOIA, or should FOIA be subjected to a cost-benefit test on “transparency inputs” like email?
  • How will the American public be able to access and use data from new digital tools and services being used in government? Will requesters be able to make sense of it all? What are the implications of these new data sources for investigative journalists?
  • And how will the next president implement new FOIA legislative reforms — signed into law this year by President Obama — after an election year where email and transparency has become a major campaign issue?

We explored these questions and others related to the future of the FOIA at a Shorenstein Center breakfast panel I moderated at Harvard Kennedy School last week. (NiemanLabs has an excellent write up of the event.) I was joined by three guests with first-hand perspectives on FOIA:

  • Tracy Weber, a Senior Editor at ProPublica and Pulitzer-prize winning investigative journalist;
  • Michael Morisy, founder of MuckRock, a non-profit news site that helps Americans file public records requests; and
  • Miriam Nisbet, the first Federal FOIA Ombudsman in the National Archives in the Obama Administration.

The speakers highlighted the importance of freedom of information laws in keeping governments accountable, as well as the practical frustrations when filing a request for information — especially as an investigative journalist hot on the trail of a story.

Miriam Nisbet, who has a distinguished career in FOIA administration, including founding the ombudsman office (the Office of Government Information Services) in the National Archives, cited estimates that federal administration of FOIA costs the American taxpayers roughly $500M per year. It begs the question: what price should we put on federal government accountability and transparency?

Regardless of the absolute dollar amount, I’d argue that the federal government can implement FOIA more efficiently — which means investing in modern discovery tools, smarter workflow applications for FOIA staff, and building user-focused digital services that help all types of requesters.

Making a public records request might sound boring. But as Tracy Weber recounted, asking the federal government about Medicare payments to doctors eventually led her to investigating the Armenian mob, and getting a warning from the DEA, as she and her team uncovered substantial Medicare fraud.

Weber’s request took almost a year to negotiate and fulfill, given the sensitivity of the data, and the need to protect patient privacy. Weber noted that government officials have substantial power to shape or delay a media narrative, just by the pace of disclosures. Remarking on the power and the limitations of how the law works in practice, Weber said “I have a love-hate relationship with FOIA.”

But Weber and her colleagues are willing to put in the effort to uncover important data. She highlighted ProPublica’s Dollars for Docs, an ongoing investigation of how pharmaceutical money reaches physicians. ProPublica reporters used drug company payment data to explore the impact of the money. Then they combined it with Medicare prescription data, uncovered with the help of FOIA, to show that doctors who get paid by pharmaceutical industry tend to prescribe more brand-name medications.

At a local level, freedom of information laws vary. Their use, by reporters and activists, are an important tool to hold local governments accountable, but can also influence national policy conversations. For example, one of MuckRock’s current projects is an effort to make public the use-of-force policies in the largest police departments around the country.

It’s hard to have a conversation about public records access without discussion of the current Presidential election. The national media coverage of Hillary Clinton’s emails is twice that of media coverage of all of her policy positions, according to a recent Shorenstein study by HKS Professor Thomas Patterson.

2016 is the fiftieth anniversary of the Freedom of Information Act. Freedom of information laws, including FOIA at the federal level, has helped journalists break many important national news stories over the past 50 years — from domestic FBI and NSA surveillance to the question of what the government knows about Wu-Tang Clan’s Ol’ Dirty Bastard.

The Washington Post Editorial Board has called FOIA a “vital tool for keeping government open and honest” and “a law-based process for citizens to seek information from the powerful.” They summarized its significant impact, saying “the law has been used to expose waste and mismanagement, unmask decisions on national security, and highlight threats to food safety.”

Not everyone shares that assessment. The late Supreme Court Justice Antonin Scalia famously called FOIA “the Taj Mahal of unintended consequences.” And more recently, Vox’s Matthew Yglesias argued, in a piece entitled AgainstTransparency, that email is more akin to verbal conversations, and should be exempt from FOIA.

Morisy makes the counter case simply and powerfully: our government reports to the American people, and is accountable to them. As Morisy has said previously:

“When you work in government, the people are your boss. And the boss has a right to see your work.”

For the federal employee, knowing the American people have a right to your work product changes how you work, mostly for the better. Lean Bannon, Product Lead at 18F and Ash Center Technology and Democracy Fellow, talked at the event about howGSA’s 18F works in the open, openly posting code, design decisions, and prototypes. Check out Leah’s excellent post about working with the FEC and 18F’s explanation about how they work in the open, building accessible products, and deploying early and often.

I had the honor to be part of the domestic open government team during the Obama administration. On his first day in office, President Obama established a presumption of openness in FOIA and issued a Transparency and Open Government memo that said:

“My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in government.”

I’m proud of the progress we made on FOIA during the Obama Administration, which included:

  • The establishment of the presumption of openness standard;
  • A record number of FOIA requests fulfilled;
  • A more collaborative approach with civil society and open government groups, including a new advisory committee to advise on best practices for FOIA Administration;
  • A pilot project, built with GSA’s 18F unit, called OpenFOIA, which aimed to improve the FOIA request experience; and
  • The piloting of a “release once, release to all” presumption.

Recently, in June 2016, President Obama signed the FOIA Improvement Act of 2016, which codified and expanded ongoing reforms — including the requirement that the executive branch develop a government-wide centralized FOIA request portal. I’m hopeful that the teams working on the new centralized portal for FOIA requesters are empowered to use true agile development practices. This iterative approach is crucial to building great digital services, but is still often stymied in government.

Some critics charge that President Obama’s rhetoric doesn’t match up to his administration’s record on FOIA. Sunlight’s Alex Howard, for example, characterizes the Obama Administration as having a “mixed record on open government.”

But it’s easy to be a critic, especially in government transparency efforts, which never seem to be good enough.

I’m proud of executive branch FOIA reform efforts, many of which were codified by the 2016 legislation. And I’m proud to have worked with pioneers like Miriam Nisbit and current U.S. Deputy CTO Cori Zarek, a former journalist and FOIA lawyer turned WH official leading FOIA reform implementation.

Both Nisbet and Zarek were elected to the National Freedom of Information Hall of Fame — honored for their unique roles in helping to establish, defend and utilize the legal basis for the right to know. For the next 50 years, not to mention in the immediate digital era, we’ll continue to need great public servants like Nisbet, Zarek, and Bannon who will keep working to make government accountable to the people.

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