The Freedom of Information Act seeks to ensure public access to federal records. Tim Burton’s 1988 film “Beetlejuice” tells the tale of a crude, comical ghost summoned from the netherworld when his name is repeated three times. You know, the one with Gina Davis, Michael Keaton, and a young Winona Ryder.
What do they have in common? 5 U.S.C. § 552(a)(2), of course.
That’s the provision of FOIA that instructs federal agencies to post records online, after they have been requested at least three times, à la “Beetlejuice.”
Now, several groups are joining in a coordinated effort to make simultaneous FOIA requests to ensure that government documents remain public and on government websites. They’re relying on FOIA’s “‘Beetlejuice’ provision,” or as you might know it, the Act’s “frequently requested records provision.” These activists, if successful, may have found a new way to protect public information in uncertain times.
Introducing FOIA’s “Beetlejuice” Provision
The Center for Biological Diversity, the Center for Media and Democracy, and the conservation biologist Stuart Pimm, Ph.D., announced last month that they were engaging in coordinated requests in order to prevent environmental data sets from being removed from federal websites. The requests seek hundreds of data sets from eight federal agencies, requesting information on everything from oil projections to the status of endangered species populations.
"We realized there was this relatively new and untested provision of the Freedom of Information Act."
The organizations were inspired by post-election data rescue efforts and “realized that there was this relatively new and untested provision of the Freedom of Information Act,” Amy Atwood, an attorney with the Center for Biological Diversity and Legal Director of its Endangered Species Program, told Logikcull.
Not everyone refers to the frequently requested records provision as the “‘Beetlejuice’ provision,” of course. In fact, Atwood acknowledges the name is a newly coined term. But it’s a name that makes sense.
The 2016 FOIA amendments officially established the “rule of three,” requiring federal agencies to “make available for public inspection in an electronic format” those records “that have been requested 3 or more times.” That rule of three was actually based off earlier DOJ guidance that agencies should post thrice-requested records online -- and it bears a fair resemblance to the invocation of Beetlejuice.
“When people get it, they really get it,” Atwood says.
Testing a New FOIA Tactic
The “Beetlejuice” approach, submitting three requests at once, is a novel one. But that doesn’t trouble Atwood. “The overriding concern that we had and continue to have is that this information is in jeopardy. That’s exactly the kind of thing that FOIA is designed to prevent from happening.”
The Center for Biological Diversity and their collaborators might have their work cut out for them, however.
“It’s pretty clear that federal agencies used exemptions to hide information under the Obama administration, played all sorts of different games to hide information,” David Cuillier, Director of the University of Arizona’s School of Journalism, tells Logikcull. “I think most people expect that it is going to get worse” under the new administration, he says.
Cuillier should know. As a journalist, academic, and former president of the Society of Professional Journalists, he’s built a career around FOIA. Some of his most recent research found that many freedom of information experts believe that public access is worse today than four years ago and that nearly nine out of ten think it will get worse in the future.
It’s unclear whether the environmentalists’ coordinated approach to FOIA requests will be successful. One entity submitting three separate requests to game the system would “skirt the intent of the law and I’m guessing the court’s wouldn’t uphold it,” Cuillier says.
But when three groups work together to request government records simultaneously? “How coordinated it is will be the question,” according to Cuillier.
“I’ll be curious to see how it plays out.”
The requesters, however, are eager to test out their “Beetlejuice” tactic.
“We didn’t feel that it was in the public’s best interest,” Atwood says “to send in a request and then hope and wait that two other requesters sent in the same request.”
An Increasing Focus on FOIA -- And Increasing Backlogs
“We’ve recognized, particularly as we’ve grown, how important FOIA is to our work.”
The Center for Biological Diversity, among other groups, has increasingly turned to FOIA as part of its advocacy. The Center’s FOIA docket has grown from 100 active FOIA requests a few years ago to nearly 280 today, covering everything from Scott Pruitt’s emails to the loss of government webpages. A fair amount of those, roughly 5 percent, are being or may need to be litigated.
“We’ve recognized, particularly as we’ve grown, how important FOIA is to our work,” Atwood says.
But more requests don’t always mean more production. The federal government, responded to 454,911 FOIA request in part or in full during FY 2016, for example, and that’s just a fraction of the 788,769 FOIA requests received during that same period.
“By and large the FOIA coordinators are doing a really good job and we have good relationships with most of them,” Atwood attests. The administrative backlog can be explained by lack of resources and training, as well as the “political game playing.”
“A lot of agencies are getting very good at gaming the system, essentially using the law as a tool of secrecy instead of transparency,” according to Cuillier.
“This is critical information that the public should have,” he says. “And we shouldn’t have to play these games to protect it. That’s the scary part of all this.”
Reducing FOIA Roadblocks
“You don’t need more money necessarily” to comply with FOIA’s requirements, according to Cuillier. “Proactively putting information online could save a lot time.”
Making use of technology can help too. “A lot of agencies are in the stone age when it comes to technology, using fax machines and nine-track tape drives, thinking that giving .pdfs out satisfies the requests for data,” Cuillier explains.
“There are techniques and tools” that agencies can use “and definitely using technology smartly will save taxpayers a lot of money and requesters a lot of time.”
This post was authored by Casey C. Sullivan, Esq., who leads education and awareness efforts at Logikcull. You can reach him at [email protected].