Last week, the National Security Archive (NSA) and the Project on Government Oversight (POGO) published the results and analysis of their survey of agency FOIA personnel and requesters about the search process. The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.
A. A useful survey and I largely agree with NSA and POGO's conclusions. If I were to quibble about anything, it would be with the following paragraph:
Unfortunately, statistics show extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.” But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches. Administrative appeals often result in a second, more thorough search that finds the documents requested.
Based on my experience as both agency counsel and a requester, I do not believe that the percentage of no-record responses is "extremely large." And I would say that "some," not "many" of those responses are due to inadequate searches. Similarly, I would say that appeals "sometimes," not "often," result in the discovery of additional requested records. In the absence of hard facts, of course, we'll have to agree to disagree about which adjectives are more appropriate.
R. One of the shortcomings of the survey is its small sample size: 57 responses, of which only 30 were from processors. Considering the bulk of the analysis centers on what agencies are doing, I'd have liked to see more input from the government. Otherwise, I agree that the conclusions are generally good.
The lack of government-wide guidance on how, precisely, an agency should conduct a search is one source of a lot of the identified problems. But that's probably unavoidable so long as agencies have varied infrastructures. Consider the IRS. In my experience, the IRS tries to avoid searching e-mail, for example, because it doesn't allow employees to self-search (at least, that's what IRS FOIA officers have told me). The alternative approach requires a lot of time and labor investment. The IRS also complains that it lacks modern hardware and software. Such technological limitations have a real impact on how the FOIA is implemented, especially in an increasingly high-tech world.
As for the "no records" issue, agencies regularly tell me that they don't have any responsive records. I'm sure that many of these responses reflect a good faith search. A few of them, however, may be based on a reluctance to deal with complex or politically sensitive requests. That many agencies rely on components or employees to actually carry out a search only facilitates such poor efforts in a limited number of cases. I've also found it common for an agency to tell me that it has a large number of potentially responsive records, but then produce hardly anything once the review process is done. Maybe the agency is erring on the side of being over-inclusive during the search process, but that just raises a different type of inefficiency. Finally, on a related note, I imagine a small number of requests are rejected as invalid or imperfect because an agency simply considers it difficult, as a practical matter, to conduct a search. I realize, though, that there may be a fine line between a complex request that requires a difficult search and an "unreasonably burdensome" request.
Here's one recommendation that wasn't in the survey: requesters and agencies should do a better job at talking to one another. Communication allows everybody to clarify the scope of the request, to identify expectations, and to understand an agency's limitations.
K. Considering the lack of uniform guidance on searches, a 16 percent "no responsive records" doesn't seem high to me either. That said, I think when you include that 16 percent with those instances where an agency gives you a couple of emails or documents at you just to close the request, that's where the "extremely large" would be found.
If you look at the survey responses to FOIA software, the lack of technology use for conducting searches is pretty stunning with 25 percent not using any software and 7 percent "not sure." I'm not sure which technology is best (the survey lists the software used, like FOIAOnline), but I'd wager that solving the technological limitations within agencies would be the best way to improve FOIA for processors and requesters.
