Participating agencies are the Environmental Protection Agency, the Office of the Director of National Intelligence, Millennium Challenge Corporation and certain parts of the Department of Homeland Security, the Defense Department, the Justice Department and the National Archives and Records Administration.
The policy even has a pithy title — “release to one is release to all.”
Of all possible FOIA reforms, this one has to figure among the last that news media executives would advocate. At a House oversight committee hearing on FOIA problems last month, witnesses from news organizations and nonprofits lamented problems with not getting documents from the government — not so much with the protocol for releasing them after the often arduous task of prying them from the bureaucracy. “[I]t has become clear that only by filing litigation does a federal agency begin to produce documents in its possession responsive to the FOIA request,” said lawyer Cleta Mitchell of contemporary FOIA realities. A representative from the New York Times recounted how an agency indicated that fulfilling a FOIA request would take 15 years.
The Erik Wemple Blog checked with participating agencies to determine whether the release to requesters would be simultaneous with universal online posting.
Jeffrey Anchukaitis, a spokesman for the Office of the Director of National Intelligence, told the Erik Wemple Blog that online postings of FOIA’d documents would occur “near simultaneous to the release to the requester; however, I would anticipate at least some lag time as the documents are put into the queue to be processed for posting. That lag time would be dependent on things like how many pages are in the release, or what other non-FOIA documents are in the queue for posting, for example.” After the pilot period, the office will consult with the Justice Department, the lead agency on this initiative, to iron out an approach “that works best for everyone involved.”
George Hull, a spokesman with the EPA, tells the Erik Wemple Blog, “As a matter of regular practice, EPA notifies the requester at the time that the response is posted on the foiaonline website. We believe that the posting of the information advances transparency.”
And, perhaps, penalizes those who go to great lengths to fetch it. “I do share the concern of other journalists that this could hurt the journalist who made the original request,” writes Washington Post Investigations Editor Jeff Leen via e-mail. “It could also affect long-term investigations built on a number of FOIA requests over time.”
“FOIA terrorist” Jason Leopold has big issues with the approach. “It would absolutely hurt journalists’ ability to report on documents they obtained through a FOIA request if the government agency is going to immediately make records available to the public,” writes the Vice News reporter via e-mail. Leopold has already experienced the burn of joint release, he says, after requesting information on Guantanamo Bay. The documents were posted on the U.S. Southern Command’s Web site. “I lost the ability to exclusively report on the material even though I put in all of the work filing the requests,” he notes.
The result is inevitably less incentive for news organizations to throw money and time behind FOIA battles, Leopold argues. “[I]f a journalist or news organization is going to do all of the work in filing the initial request and invest in litigation they should be given some lead time to report on it first and this proposed policy does not offer that.”