Reporters In New Survey Say They Can Live With Federal Plan to Post All Records Released Under FOIA – With Delay to Protect Scoops

Results reported August 30 showed a large majority of reporters answering a survey by the Reporters Committee for Freedom of the Press and who use the federal Freedom of Information Act (FOIA) in their work support plans due in the new year that will require federal agencies to post online all records released.

Of the 107 responding, 83 per cent supported the idea, though 58 per cent did so only on condition that general release was delayed as much as a month to protect against competitors scooping the original requester.

The U.S. Department of Justice reported in June on a test of the concept in seven agencies and in late July notified all agencies of forthcoming expansion so that the general policy will be “Release to One, Release to All.”

Increasing public access to government records by what is called "proactive release" (not based on a request), has been a continuing concern.  Federal FOIA law since the beginning has required certain records to be available automatically and also, since 1996, agencies must post all FOIA releases that “have become or are likely to become the subject of subsequent requests for substantially the same records.” The results have been very mixed as agencies exercise the discretion allowed in the law.  

The D.C. FOI law includes the same mandate to publish frequently requested items, yet agencies have posted few such released items on their own sites or in the electronic “reading room” that is part of the unified D.C. online FOIA portal, known as FOIAXpress.

In response to the August survey, reporters feared "release to all" could diminish some of the professional competitive spirit that fuels long and complicated investigative efforts resting in FOIA. They worried, also, their editors would be even more skittish about enduring costs and delays for uncertain results.

In contrast, others thought their complex FOIA-based stories would not be at much risk from others trying on short notice to make sense of a windfall of released records. Some also on principle disliked the arguments for special treatment for press requests, saying for example, “It’s not the Good Scoop Act” and “we’re working for the public so it’s hypocritical to not support releasing documents to everyone.”

The Reporters Committee found no consensus on the useful length of a protective delay period—but concluded a month would satisfy most.  Effects on jourmalists of such a new "presumption" of release to all will be explored as the administration develops the new policy (including in a public meeting of the Chief FOIA Officers Council on September 15). The policy is  expected January 1, 2017, according to the President's June 30 signing statement accompanying the FOIA Improvement Act of 2016.