Reducing FOIA To Absurdity

In the two weeks following the April 5 explosion at the Upper Big Branch Mine, I filed four Freedom of Information Act requests with the Department of Labor in my capacity as Washington correspondent for Mine Safety and Health News.

These requests were filed because I was not having any success simply asking MSHA and DOL press officers for these particular items of information. As a journalist covering a breaking news story of urgent public interest, I filed the FOIA requests electronically and asked for expedited processing, as the FOIA law provides.

Up to two weeks later, I received – not the information, but simply letters acknowledging the requests from the MSHA Division of Coal Mine Safety and Health.

Although MSHA stated that my requests for expedited processing were granted, the letters also said that I could probably expect the actual responses — wait for it — “within 45 working days after the date of this letter.”

Because the acknowledgement letters were dated between April 23 and April 27, by my calculation that would put the actual responses around the end of June.

That would make a total of up to 11 weeks from request to response. The FOIA law requires response within 4 weeks — technically, 20 working days — for ordinary FOIA requests, let alone for expedited ones.

Moreover, the acknowledgment letters did not promise that the requested documents will be released, only “a response.” Based on that wording, the promised response could turn out to be a denial.

To add to the absurdity, at least three of these four requests were for materials that are or should be readily available within the agency. And to complete it, two of those requests were already – essentially – moot due to information released by other agency offices after the FOIAs were filed.

Here are the requests:

One FOIA on April 13 requested the approved ventilation plan at the Upper Big Branch Mine. On April 22, without notice to me, the plan was posted on the MSHA website. (See my earlier post.) Yet according to the Division of Coal Mine Safety and Health, it could take until the end of June to fulfill this request. Absurd.

Another FOIA on April 13 requested standard MSHA preliminary report forms on the 29 fatalities at the Upper Big Branch Mine. (This was before the West Virginia Medical Examiner officially released the names on April 15.) The request stated, “Failing that, I request a list of the fatal victims or any document containing such information.” On April 20, an MSHA spokeswoman provided a set preliminary report forms. (She noted that two of these forms were believed to contain errors concerning the work experience of the two individuals. We did not use the information flagged as erroneous. Requests for updated forms, however, have so far been unavailing.) Yet according to the Division of Coal Mine Safety and Health, it could take MSHA until the end of June to fulfill this request. Absurd.

One FOIA was for a copy of MSHA’s own emergency response manual as of April 5, applicable to guiding agency activities in a mine emergency. Again, according to the Division of Coal Mine Safety and Health, to respond to this request could take until about the end of June. Yet either MSHA has such a document, or it doesn’t. If it doesn’t, how long does it take to say no? If it does, how long is realistically needed to photocopy the manual, write it to a disk, or post it to the agency website – where numerous other agency manuals are posted — and notify the requester? Absurd.

One more FOIA was for a copy of the fan chart(s) from the Upper Big Branch Mine on April 5, as collected by investigators. (These would show any abnormal fan behavior, including stoppages, before or because of the explosion.) Again, the Division of Coal Mine Safety and Health stated that responding to this request could take until about the end of June. I am not sure of the volume of material, but the identical time frame specified for all four requests seems curious. Even if copying these charts poses some kind of practical problem – which seems unlikely in this age of digitization — the agency should at least be able to state within 20 working days whether it intends to release the material and roughly when.

Since the accessibility of the information can hardly be an issue, the cause for the inordinate processing times most likely is bureaucracy. Based on my experience, that means compartmentalization, internal red tape, rigid reliance on standardized procedures, excessive centralization, over-lawyering, and multiplying levels of reviews, signatures and countersignatures. It means focusing on the letter of internal agency procedure while missing the spirit of the law and common sense.

The compartmentalization may be the worst. In MSHA – as in many other agencies, no doubt – administration of FOIA has become organizationally cut off from its sister functions of public information and media relations. If the left hand does not know what the right hand is doing, this is a likely cause.

In general, moreover, I believe Congress never intended the FOIA to be micro-managed by specialist government attorneys, though the trend has been in that direction. If employees throughout an agency are educated on FOIA principles and encouraged to work with requesters, this can markedly reduce average processing time, internal paperwork and necessary levels of review. Employees generally educated in the principles of FOIA can handle most requests without legal advice and recognize when they need to seek it.

However it has come about, in regard to these requests the Freedom of Information Act is functioning more like the Obstruction of Information Act.

As I’ve said before, some of MSHA’s public information functions have been noticeably better performed in the wake of Upper Big Branch than after Sago in 2006 and Crandall Canyon and 2007.

This is not one of them.

Footnotes: On April 26, I did have a telephone call from an MSHA clerk about the FOIA request for the ventilation plan. We discussed the fact that the plan was now on the website, and I registered my dissatisfaction with having been blind-sided by the unannounced Web posting. On consideration I decided not to write another letter to withdraw the request but to let the agency FOIA procedures play themselves out. It should also be noted that I was in charge of the FOIA program at MSHA before retiring from the agency in February 2004 after a 25-year career in the agency’s public information and media relations office.

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