Freedom of Information Is Disintegrating (Faster) Under the Coronavirus

Federal lawmakers say that in response to the pandemic, the FBI and other executive agencies may have placed unnecessary restrictions on Americans’ ability to file public records requests. They are now asking the Justice Department to explain what steps are being taken to ensure the law is being followed, to the extent it’s possible, amid the national health crisis.

The letter comes after the FBI announced in March that it would no longer accept Freedom of Information Act (FOIA) requests submitted through its online portal. Instead, the bureau said in a message that it would accept requests submitted only “via standard mail.” Those instructions, which disappeared from the FBI’s website a few weeks later, at first dumbfounded many people. Journalists and researchers who make frequent inquires of the bureau quickly and brutally ridiculed the message.

“They would prefer to receive only those requests laden with all of our germs and whatnot?” tweeted Reuters reporter Brad Heath. “This is crazy but then again FBI and FOIA is a disastrous combo,” wrote BuzzFeed reporter Jason Leopold, a nod to the bureau’s well-earned reputation for abusing the federal statute.

Journalist Emma Best later shared a screenshot of a FOIA response letter from the National Archives and Records Administration (NARA), which provides policy guidance to agencies that handle FOIA requests. NARA was refusing to release records that describe the impact of the virus on federal FOIA policy. The material is exempt from the law, it argued, because it is “deliberative.”

This week, in a letter to DOJ’s Office of Information Policy (OIP), a bipartisan group of U.S. senators—Dianne Feinstein, Chuck Grassley, Patrick Leahy, and John Cornyn—made a similar inquiry hoping to uncover what, if any, efforts are underway “to ensure that FOIA is faithfully administered in these unprecedented times.”

“FOIA plays a critical role in increasing government transparency and accountability by securing the public’s right to information about the work federal agencies are doing,” the letter says. “For over 50 years, information revealed through FOIA requests has helped to expose government waste and misconduct, as well as threats to the public health and safety.”

More specifically, the lawmakers have asked OIP whether any guidance has been issued to agencies grappling with social-distancing and challenges of remote work. “[H]as OIP, or the Department more broadly, issued any formal guidance to agencies regarding best practices for FOIA administration during the pandemic?” they ask. “If not, why?”

FOIA is a law that is often characterized as “toothless,” meaning there are few repercussions for frequent violators beyond the occasional court fee and damning internal reports. Data amassed by The FOIA Project shows the increasing burden that agency noncompliance is placing on the courts each year as the number of lawsuits against violators continues to skyrocket. In 2008, 322 lawsuits were filed over FOIA. A decade later, that number had risen along a curve to 859.

The coronavirus itself is only the latest threat to FOIA transparency, which is implemented across the government by largely underfunded offices that—some argue purposefully—rely on computer systems that are so old they belong in a technology museum.

“A lot of agencies are still in the dark ages when it comes to using modern technology for records management,” said Adam Marshall, attorney at the Reporter’s Committee for Freedom of the Press. “I think a lot of people would be shocked at how ancient a lot of the technology is that’s at the disposal of FOIA offices within the federal government. Most of the time, when I submit requests, if there’s not an e-mail address available—and there’s frequently not these days—I fax my requests.”

Marshall said he mostly uses an online fax service, which is first transmitted to a FOIA office, then converted into an email. “I’m not sure which is worse,” said Marshall of the idea of printers spitting out reams of requests, “or that they’re just converting it back into an email and forcing requesters to go through this whole rigmarole when they could just provide an email address, to begin with.”

Two years ago, it took on average around half a year for the government to process what it calls a “complex” request, those with what it figures involve many different documents or relate to multiple offices. But that was before a government shutdown bloated agency backlogs in early 2019, not to mention the pandemic, which is ongoing and will undoubtedly have a far bigger impact.

Without a remedy, and soon, the fear is that Americans will one day find it impossible to learn more about what its leaders are doing behind closed doors until well after said leaders have left the government. And the coronavirus won’t be to blame.

“I think covid-19 has in many ways exposed a lot of the flaws and difficulties of how agencies respond to FOIA requests,” Marshall said. “We see, for example, a lot of agency systems that just don’t make sense. Why, for example, is the State Department processing all of its FOIA requests on a classified system? Why are there not better remote-work arrangements so that federal employees can continue to do their jobs, even from home? Why [are] there not better tools and technology to more efficiently review requests and documents responsive to them?”

“Why are agencies not proactively releasing information? If ever there was a time to just push out everything you have on a topic, covid-19 is it, right?” he said. “You would think that agencies wouldn’t want to process hundreds and hundreds of FOIA requests for the same stuff, or similar stuff, they should just be putting out everything they have on the web and let everyone have it.”

Marshall said that, despite being an optimist, the state of FOIA under the Trump administration has gotten “worse, and worse, and worse,” continuing a long trend that pre-dates the last election by years of the public and press “facing longer delays, more claims of exemption, and just more difficulty in wrangling information from the federal government.”

OIP itself reported last year that simple requests—those that are easy to fill and don’t involve a high volume of material—took its own FOIA officers an average of 54 days to complete, a nearly 300 percent increase from the previous year. At least one simple request took the agency 595 days to finish. Complex requests, which sometimes require combing through material from multiple offices, can take nearly twice as long. The FBI, meanwhile, has been known to take up to half a decade to fulfill some requests.

In the midst of a national health crisis, though, with widespread concern about the government’s performance being clearly evident and growing, the public cannot wait a year or more to benefit from the level of transparency required under federal law. Some facts are only useful in the present. The rest, as they say, is just history.

This why FOIA allows for the expediting of requests when a compelling need exists. This urgency is demonstrated, the law holds, if the government’s withholding of certain records could “reasonably be expected” to endanger a person’s safety or their life. At the same time, it can also mean that the request is simply pertinent to a “pressing issue of the day,” a time-sensitive issue that’s captured a large number of Americans’ attention.

The coronavirus would seem to meet both of those standards and they likely apply to all kinds of requests journalists and other interested parties are filing on a daily basis to agencies like FEMA and Health and Human Services (HHS). Other agencies, too, are likely to hold unreported information that may be useful today, but worthless tomorrow, such as the Bureau of Prisons, custodians of an untold number of infected inmates; or the Food and Drug Administration, which, in conjunction with federal antitrust authorities, has been handling incidents of covid-19-related fraud.

American Oversight, a legal watchdog group formed in 2017 to investigate conflicts and fraud in the Trump administration, announced a lawsuit against several federal agencies on Tuesday including HHS and the Department of State, for failing to fulfill FOIA requests related to coronavirus, shortages of medical equipment, and quarantine protocols. “The agencies failed to release the requested emails as required by law, leading American Oversight to file suit today,” the group said.

In response to the letter sent by Senator Leahy and his colleagues this week, American Oversight’s executive director, Austin Evers, told Gizmodo, “Transparency is even more vital right now, and it’s heartening to see bipartisan support for the public’s basic right to know what our government is doing.”

Evers added that the coming months would be a “high-stakes test” for Bobak Talebian, whom Attorney General William Barr picked to lead OIP in February, just as the covid-19 outbreak was getting started.