Virtual Records

t's an open secret in Washington that agency responses to the Freedom of Information Act have been less than punctilious. In fact, President Clinton mentioned "huge backlogs of requests" in many agencies when he signed the Electronic FOIA Amendments into law last year. Open-government proponents are hoping things will be different under the new law, but so far there's little hard evidence that improvements are in the pipelines.

Three decades ago, FOIA laid out the rules for releasing federal agency information to the public. It established that the public could request government information and get it, as long as the information was not protected under one of nine specific exemptions from the FOIA. For example, agencies may not release information classified in the interest of national security, nor information whose release might hamper law enforcement.

E-FOIA, a set of amendments to the 1966 law, will force agencies to use contemporary technology, while it prods them to cut their backlogs. The new law extends from 10 days to 20 days the basic time in which agencies must respond to requests for information.

If "unusual circumstances" prevent a timely response, an agency can inform requesters that it needs more time to respond--but only when the agency is making progress in reducing its backlog. In other words, a long-standing backlog of requests does not qualify as a good excuse for agencies to put off requesters.

E-FOIA also pushes agencies to disseminate more information electronically. Besides confirming that computerized records are subject to FOIA, it requires agencies to release lists of their major information systems and record locator systems, along with handbooks for obtaining information. Agencies now must undertake electronic searches in response to FOIA requests and make the records available "by computer telecommunications" and, when feasible, in a format desired by the requester-such as a text file on a floppy diskette, or by fax.

It also requires them to establish a reading room where the public can find an index of records that have been released under FOIA and are likely to be requested again, plus agency policies, staff manuals and opinions made in the adjudication of cases. By Nov. 1, reading room information is to be available online in an "electronic reading room," presumably on the World Wide Web.

Paperbound Culture

The drafters of E-FOIA, who included Rep. Stephen Horn, R-Calif., and then-Sen. Patrick Leahy, D-Vt., evidently were hoping to change the paperbound culture of the FOIA. In many agencies, once requested documents are located, FOIA compliance specialists pore over the copies, using a Magic Marker or scissors to delete information that should not be released. These redactions often are reviewed by a second professional before the records are forwarded to a third desk for shipment to a requester.

"It's labor-intensive like crazy," says Richard L. Huff, co-director of the Justice Department's Office of Information and Privacy. His office oversees FOIA implementation governmentwide, as well as in Justice and its bureaus, and provides agencies with FOIA guidance. But until now the office sometimes has lacked the information it needed to get an overview of FOIA issues. Under E-FOIA, agencies will report annually to Justice, which will make all the reports available at "a single electronic access point," probably on the World Wide Web. Then the exact size of the backlogs will become evident, along with the amount of resources agencies are devoting to FOIA compliance.

Some of the numbers will be staggering. The FBI, for example, spends $21 million a year and employs 300 people to process FOIA requests, which it receives at the rate of about one per minute. Its backlog is about 15,000 requests. The governmentwide total: about 600,000 requests a year. The cost to respond to an average request: around $500, and climbing.

Agencies are supposed to recover some of their FOIA costs by charging requesters for the costs of searching for and copying the information. Non-commercial requesters, however, get a break on the fees, and no one reimburses the agency for the salaries of employees who review the records to make sure all their contents should be released. "That's where the time is," Huff says. His department recovers less than 1 percent of its FOIA costs. Housing and Urban Development has the highest rate of cost recovery, he says, but HUD still gets back in fees less than half of what it spends on FOIA.

NASA kept its costs under $500,000 last year. One way NASA controls its FOIA costs is by referring requesters to Web sites where the information is posted, according to Justice's Huff. NASA is one of a very few agencies that had an electronic reading room operating early this summer.

The Clinton administration has encouraged agencies to be more open with their information as a matter of policy, and Justice officials say it makes sense from a management perspective, too. "The more affirmative disclosure there is, the more efficient it is," says Daniel J. Metcalfe, the other director of the Justice FOIA office. That's why some in the administration are pinning their hopes on E-FOIA and the electronic reading room concept.

"I'm sure it'll be a big help," says Darlene D. Hall, the FOIA officer for HUD's inspector general. The IG office now posts activity reports and audit reports on the World Wide Web, and Hall often refers requesters to the Web. For example, she recently responded to a request for a not-yet-issued report by inviting the requester to keep an eye on the Web for the report whenever it's released. She told the requester he was free to renew the request in writing, as well.

At the Food and Drug Administration, "we're hoping that our FOIA workload will decrease over time" because of E-FOIA implementation, says Betty Dorsey, whose office devoted 130 staff years to compliance in 1996. In the near term, however, she's bracing for more work as the office converts documents to digital formats and responds to new demand generated by online availability.

Computer Systems

Agencies have shown some interest in computer systems that would reduce some of the labor-intensive aspects of their FOIA work. A recent product demonstration sponsored by BTG Inc. and several other companies drew overflow crowds, for example. But vendors report few recent sales of systems for FOIA processing.

One new system is nearing deployment at the Immigration and Naturalization Service, which gets more FOIA requests than all but two other agencies. The $2.2 million system will track requests, scan documents and allow the agency to redact them on PC screens, generate fee invoices and create paper or CD-ROM documents. The FOIA staff at INS worked closely with contractor Electronic Data Systems Corp. and a subcontractor, Information Management Consultants of McLean, Va., on development of the system, which other agencies are considering using as well.

At the State Department, 200 FOIA professionals are waiting to use new Windows PCs to replace their 17-year-old, mainframe-based system. A vacancy in the security staff gave rise to concerns about using the new client-server system, which also will handle document declassification. After months of delay caused by the security concerns, Jackie Lilly of the Office of Information Management could say only, "Right now, this is the No. 1 hiring priority for IM." The new system, developed by two contractors, is available to other federal agencies and has been installed at the National Reconnaissance Office and Agency for International Development.

Most such systems, including the one State will use, are document processing and workflow applications that turn paper documents into images. The images can be indexed, edited, stored, routed and retrieved by computer. They promise to save substantial amounts of labor and paper-handling costs. For a 3,800-page document-which is not terribly unusual in the FOIA business-printing it and sending it typically costs $120. Downloading it onto a computer disk costs just $1.06, according to Larry Klein of Imagination Software Inc. in Silver Spring, Md. The systems also can cut costs by storing redacted versions of documents for future use. At the same time, the systems are quite expensive. Agencies can acquire them in increments, as needs and budget allow, but a full-featured system for several users probably can't be installed for less than $125,000.

Just getting their information into a reading room and up on the World Wide Web is proving tricky for some. E-FOIA was enacted as agency budgets for fiscal 1998 were near completion. Even though agencies don't have line items for FOIA compliance in their budgets, every extra cost is a burden these days. "The resources just aren't there," says Karen Guest, FOIA and Privacy Act officer for the Office of Surface Mining, an Interior agency that employs only 600 people nationwide and still is shrinking. One Navy command's response is to contract out FOIA work. The Naval Air Systems Command and Naval Air Warfare Center in Patuxent River, Md., recently advertised its intent to award such a contract.

"It [FOIA] is a very low priority in most agencies," says Guest, who was among several FOIA professionals who mentioned the need to work with others in their agencies on implementing the law. Records managers, general counsels, computing specialists, public affairs officers and others may need to team up, each bringing specialized expertise to the table.

"One thing the E-FOIA has done is made FOIA part of an overall public information strategy," says Rosario Cirrincione, FOIA director for the Department of Health and Human Services.

Cirrincione is working with webmasters at HHS to get information posted on the Internet. He predicts that the new law will result in getting more government information out of agency file cabinets and into the hands of the public. "To that degree, it's working," he says.