Taking point on FOIA

Melanie Pustay at an April 2018 meeting of a FOIA advisory committee. (Photo courtesy: National Archives and Records Administration)

The number of Freedom of Information Act requests is at an all-time high. While the figures for this year are yet to be released, Melanie Pustay, director of the Department of Justice's Office of Information Policy, predicted the year's total for fiscal year 2018 is "going to be near a million."

"Just as more information's available, people want more," she said. "I think it's just an information-hungry age, and people are using FOIA, which I think is a great thing because it's designed to be used. It just makes challenges for the agencies to satisfy demand."

Earlier this year, Justice, with help from 18F, launched a one-stop shop where requesters can file FOIA submissions through a new online portal. The FOIA Advisory Committee also recently finalized its recommendations for agencies during its 2016 to 2018 term, many of which centered on process management, proactive disclosure and use of technology.

However, with its inability to compel agencies to implement these recommendations, it's up to agencies to take the initiative to improve their internal processes. And with the Trump administration's poor track record on open government and transparency, how are agencies handling the spike in FOIA requests?

FCW's Chase Gunter caught up with Pustay to talk about the changing nature of FOIA on the sidelines of a recent event at the National Archives and Records Administration.

This interview has been edited for length and clarity.

FCW: What exactly will the technology subcommittee [stood up as part of the recommendations made by the FOIA Advisory Committee to the National Archivist earlier this year] do? What's its purview?

Pustay: I think it's right now very open-ended, but the idea is to have a dedicated group of people looking at technology in the FOIA space. It's something that we've been doing at Justice in multiple capacities, so it's really just a continuation of that. I always look at [information technology] as ongoing. You can never have enough people looking at it and exploring and sharing their experiences with tools that are helpful.

FCW: What are the biggest challenges facing agencies and FOIA offices?

Pustay: I think the biggest challenge is the complexity and numbers of requests. That remains the biggest challenge for agencies. Agencies are doing really terrific in proactive disclosures, and I think they're really embracing IT. But at the end of the day, there's still the challenge of volume and complex records, including email records, which are just exponentially more difficult to process than, say, a report.

FCW: Is it legacy systems, not enough resources, not enough people? What's the challenge there?

Pustay: I think it's all of it. I think the part of retrieving emails is time-consuming, de-duplicating emails is time-consuming, so it's both. It's the nature of government records today versus back in the 1960s when the FOIA was enacted and it was pieces of paper. It was much more straightforward to search for records. It's much more complicated to search for records now that everybody does everything by email. Email chains and threads have just changed drastically the FOIA landscape, and it just takes more time. It just takes more time.

FCW: Has the FOIA portal improved the administration of FOIA and filling requests?

Pustay: We've been real pleased with the portal, with its operation. Probably one of the key things it's doing is helping people get to the right agency when they make a request. It helps identify records that are already available by the agency. It also helps set expectations for the time it might to process a request at that agency.

FCW: Has it cut down the amount of time to fill requests?

Pustay: Having the customized form for making requests means the requesters are giving all the information to the agency at the first time they make the request. And that helps because it eliminates the need for the agency to go back and forth with the requester.… So it saves time at the front end, at the beginning of the process.

FCW: There are still some agencies to which you can't submit FOIA requests through the portal. It'll link to their individual FOIA site, but you can't submit requests on the portal site. Is the expectation that they all eventually will?

Pustay: Eventually, yes, the whole idea is that they'll all be wholly interoperable with the portal. So the next step will be guidance that will be coming out to agencies giving them a timeline and directions for becoming interoperable with the portal.… I don't know when, but it's upcoming.

And [agencies] are already starting the process, and some of the vendors are already starting. It takes time to develop an [application programming interface] to be able to interact with the portal electronically, which is of course the way we want it to happen. But agencies are starting that process, vendors are starting that process. So we think in the next year or so, we're going to see, one by one, agencies who aren't already interoperable, becoming interoperable.

FCW: The Trump administration has not had a good track record on transparency. How has that impacted those who administer FOIA?

Pustay: My message from the Department of Justice is the same, our FOIA guidelines are the same. You see I'm giving the same message I've always given. We've really had incredible consistency with FOIA administration. I think the key thing is that our FOIA guidelines from 2009 are still there, so we're still focusing on all the key areas that are laid out in those FOIA guidelines. That remains unchanged.