Why FOIA's speed clause is broken
By Erin Carroll, Columbia Journalism Review, Oct. 15, 2015
In August of 2013, the Associated Press made a straightforward records request to the State Department. It wanted Hillary Clinton’s calendars from her tenure as Secretary of State—and it wanted them quickly. Noting the likelihood of a Clinton presidential run, the AP sought to make use of a Freedom of Information Act provision that allows the press to jump to the front of the line when information is urgently needed.
The State Department’s response: there was nothing pressing the public needed to know. The agency agreed to process the request, but did not promise haste. More than two years later, with the presidential election underway and Clinton’s records from her time at the State Department at the center of the story, the agency still has not provided the calendars. It is under a court order to do so by November 5.
The State Department’s response to the AP is increasingly common. In 2014, agencies denied 87 percent of the 9,981 so-called “expedited processing” requests made under FOIA. This is up from a rejection rate of only 53 percent in 2008. And the rejection rate at certain agencies is far higher. The Securities and Exchange Commission granted only three of the 253 expedited processing requests it received last year.
This high rejection rate reflects wider dysfunction in the enforcement of FOIA, the legendary open government law that will mark its fiftieth anniversary next year. “Non-responsiveness is the norm,” Karen Kaiser, general counsel for the AP, told a US Senate panel in May. “The reflex of most agencies is to withhold information, not to release, and often there is no recourse for a requester other than pursuing costly litigation.”
Journalists are always complaining about FOIA. Yet, there is surprisingly little talk about the provision that can fast track media requests. Legally speaking, the expedited processing provision is special. It is one of the few laws that grant journalists a preference over ordinary citizens, in this case putting them at the front of an agency’s often-lengthy FOIA queue.
In recent years, however, the government’s definition of “urgent” has drifted far from the media’s. “The whole thing is a bit of a joke,” said Mark Horvit, executive director of Investigative Reporters and Editors. He explained how a FOIA request made two years ago by a student of his was just fulfilled—after the student’s graduation. “So what is expedited? One-and-a-half years?”
Federal officials say journalists may be expecting too much.
“The standards are strict,” says Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, which oversees FOIA compliance. She suspects that “more and more requesters are asking for expedited processing, but they’re not meeting the standard.”
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