FALL 2006 NEWSLETTER
GEORGIA FOI ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

Businesses make the federal FOIA their business

About two-thirds of requests are from commercial requesters, and private citizens are tallied under the heading "Other"

 By the Coalition of Journalists for Open Government

Arlington, Va., July 3, 2006 – Open government is not just good public policy, it’s proved good for business.

The federal Freedom of Information Act, which turned 40 on July 4th, is a critical tool for businesses seeking government information and companies conducting competitive research. A new analysis of FOiA use showed that about two-thirds of the requests to 20 departments and agencies were from commercial requestors.

The report by the Coalition of Journalists for Open Government analyzed 6,439 FOIA requests to 11 cabinet-level departments and six large agencies in September 2005, the closing month of the last federal budget year. The review found that more than 60 percent of the requests came from commercial interests, including professional data brokers working on behalf of clients who wanted such information as the asbestos level on old Navy ships, cockpit recordings from crashed airliners and background data on prospective employees.

The second largest group of requesters – categorized as "other" and consisting mostly of private citizens – comprised a third of the total. These were individuals from a wide swath of society; a movie producer doing research for "The Road to Guantanamo," a divorcee searching for hidden assets and UFO enthusiasts who were seeking evidence of other worldly visitations.

There were also requests from a local police department mining for information on federal grants, a whistleblower trying to shore up a claim of government wrongdoing, historians digging into original source material, a cryptologist trying to recover a Navy intelligence report he had worked on years earlier, and a lawyer in the Texas Attorney General’s office trying to locate parents overdue on child support payments.

"Media" requests accounted for 6 percent of the total. Many reporters say it takes too long to get information through FOIA to make it a meaningful tool for newsgathering. It is used more frequently by journalists working on longer, investigative projects.

Even accounting for a spike in journalism activity last September, when the devastation from Hurricane Katrina prompted media requests for records on environmental and health issues, relief contracts, and aid to victims, law firms filed twice as many FOIA requests as did journalists. That same month, four financial firms alone submitted more requests to just the Securities and Exchange Commission than did all journalists in the agencies surveyed.

The coalition requested FOIA logs from 12 departments and eight agencies to determined who comprised the bulk of third-party requestors – those seeking information about people and companies other than themselves – during September 2005. The State Department and Equal Opportunity Commission did not provide the requested records. The CIA provided a log that included no information on requestors or categories.

The survey did not include three agencies that receive the most FOIA requests – the Department of Veterans Affairs, the Department of Health and Human Services and the Social Security Administration – because more than 90 percent of their requests are also filed under the Privacy Act and come from individuals seeking personal records.

The federal employees who process FOIA requests sort them into one of four categories – commercial, media, nonprofit (scientific and educational) or other – to determine processing fees. The coalition study adopted those broad designations but made its own determination in instances where an agency did not. Requests from any type of business were classified as commercial.

Commercial use is likely even higher than the findings indicate because of the way some agencies categorize requests. For instance, the Army routinely classifies almost every request as "other." That practice allows business requesters to pay a lower fee than if their requests were categories as commercial.

Daniel J. Metcalfe, director of the Office of Information and Privacy at the Department of Justice, said the 61 percent commercial use "strikes me as way too high an estimate on a government-wide basis." The only other study of users, a 2003 look at requests to four departments by the Heritage Foundation, found that 40 percent of requests were from corporations and 25 percent from lawyers.

The mix of requesters varied greatly by agency because each has special-interest users. For example, almost every request to the Parole Commission came from a prisoner. The Defense Supply Centers received 99 percent of their requests from companies seeking records on government contracts.

Nonprofit groups filed 3 percent of all requests. The groups seeking information in last September ranged from the Natural Resources Defense Council to the Beachside Bungalow Preservation Association of Far Rockaway, and included the Society for the Prevention of Cruelty to Animals, New America Foundation, Alphapointe Association for the Blind, Electronic Privacy Information Center, Consumers Union, Drug Policy Alliance, the American Civil Liberties Union, the Michigan Republican Party, the Brady Center and Public Citizen.

The fourth category of users – "other" accounted for one-third of the total. The grouping includes requests from other government agencies, but most of the requests were from individuals.

 ANNUAL REPORTS ARE REQUIRED

A log of FOIA requests is not a complicated record – every agency must keep such a list to prepare a required annual report. In many agencies, the information is computerized. Yet nearly 25 percent of the 199 departments, agencies or component units that ultimately responded to CJOG did not meet the statutory requirement of a response within 20 working days.

Agencies are only required to acknowledge the request in that period; they do not have to provide any of the information requested. Indeed 34 percent did not.

"They seem to be taking a lot longer today than they did in the 1970s and the 1980s," said Louis Fallon, a New Jersey resident who filed one of the requests to the Department of Agriculture in September. Fallon said he has been filing one or two FOIA requests a year since 1973, when he read a how-to article in The New York Times.

Not all FOIA offices log requests on the day received, delaying the start of the 20-day reply clock. The Federal Motor Carrier Safety Administration received 78 requests in September, and logged 68 of them on Tuesdays.

Also, FOIA officers record a response on the day they draft it. However, one or more supervisors must still approve the correspondence. Delays of five working days or more before a letter is put in the mail are common. An SEC response to the coalition request, denied Dec. 15, went into the agency’s books as meeting the statutory requirement, but it was not postmarked until Dec. 22, two days after the 20-day deadline. Navy Safety Center’s response was dated May 2 and postmarked May 10.