The silver lining of the Hillary Clinton email debacle is that the Department of State is well positioned to post all of Clinton’s emails online for the public to view after it reviews them for release. Unfortunately, according to a government-wide FOIA audit conducted by the National Security Archive to celebrate Sunshine Week, the majority of federal agencies are not so well situated.
Nearly twenty years after Congress passed the Electronic Freedom of Information Act Amendments (E-FOIA) – only 40 percent of agencies follow the law’s instruction for systematic posting of records released through FOIA in their electronic reading rooms. The remainders seem willing to keep the public ignorant of their records, because in the digital age if it’s not online, it might as well not exist.
Some “E-Stars,” including the State Department, FBI, and agencies participating in the government’s opt-in FOIA portal FOIAonline, exist within the federal government and serve as examples to lagging agencies that technology can be harnessed to create state-of-the art FOIA platforms that save agencies time and money and help decrease FOIA backlogs. There are, however, many “E-Delinquents” whose abysmal web performance recalls the teletype era and continues to hinder their overall FOIA performance.
Since 1966, the FOIA has required agencies to make “available for public inspection and copying” certain defined categories of records. For the first thirty years, agencies satisfied this portion of the FOIA with “conventional reading rooms,” physical locations where members of the public could review paper or microform copies of the records.
In 1996 Congress sought to revolutionize the public’s access to information and the Freedom of Information Act process by directing agencies to use the Internet to make more information – including documents released by FOIA – available.
Congress believed then, and openness advocates know now, that this kind of proactive disclosure is the only tenable solution to FOIA backlogs and delays, is a prudent, cost-saving practice, and attracts public attention.
Currently, many “E-Delinquent” FOIA offices waste resources by refusing to embrace the open government principle of posting FOIA releases online. These analog agencies spend valuable time searching for, reviewing, redacting, and releasing documents to an individual in response to a FOIA request, only to print out a paper version of the document, which may never be published online for a wider audience.
Proactive declassification and posting of records, such as those released about the Columbia Space Shuttle disaster, Deep Water Horizon oil spill completed FOIA requests, and (hopefully soon) Hillary Clinton’s emails, save those agencies huge amounts of processing time for FOIA requests while enriching the public debate since people’s curiosity can now be satisfied by just looking online.
In the sequester era, with finite and ever-more-limited government resources, any new request from the public competes for time and effort with every previous request. The only way out of this resource trap is for agencies to put online as many records as possible, those previously released, those likely to be asked for in the future, and those of significant public interest. This way, the FOIA process could ultimately be limited just to those records where a genuine dispute exists about whether they should be public.
Despite static resources, and frequently increasing FOIA backlogs, FOIA “E-Stars” have proven that by embracing the Act’s principles of proactive disclosure and twenty-first century technology, even agency FOIA programs marred by over-secrecy (FBI) and exceedingly long response times (State) can succeed at vastly expanding the amount of information the public has access to, and guarantee that FOIA resources are not wasted processing documents that become lost, gathering dust in desk drawers.
In the 21st century, if it’s not on a screen it’s not in the public domain. This will be the case with Hillary Clinton’s emails, as well as other government records.