The Constitutional pledge that the United States of America be governed “for the people, by the people” is honoured every time a federal or state agency satisfies a Public Records Request (RPP). As is inevitable, the magisterial simplicity of the Constitution is complex to work out in practice, and never more so than in the era of Big Data, where the pool of information that can potentially be disclosed has grown and is still growing exponentially.
Vague wording, clear deadlines
Agencies have to fulfill RPPs according to the letter of the law, no matter how ambiguous the wording of public records acts and sunshine laws. The regulations are not vague about deadlines, which creates a huge headache for agencies. The law doesn’t do numbers: if you suddenly get 400 requests next week, you have to process them as quickly and accurately as if you’d only logged 4.
The other constraint is money. PRRs are a public good, without a doubt. But if you get dragged into a lawsuit because of a legal error, or a simple delay, you are arguably wasting public funds. Even the perception of waste harms the workings of democracy, perhaps almost as much as that lack of transparency the Founding Fathers were determined to prevent.
The cost of PRRs must be rising for most agencies because the number of requests is rising steadily. FOIA agencies processed more than 800,000 requests last year (up 30% from 2010) at a cost of $480 million. Litigation added $40 million to that bill. Making data more accessible to journalists and the general public only seems to stimulate the appetite for more information. A digitalised 24-hour news cycle (and the enormous popularity of local news) is also ramping up demand. Whatever the root causes, there is no reason to doubt that state and local agencies are seeing similar increases in their workload.
Federal agencies tend to have more mature PRR processes but even here the figures point to considerable inefficiencies. Costs vary very considerably between agencies. The Department of Homeland Security, which in 2017 received 45% of the total federal requests, last year spent $53 million processing PRRs. The Department of Justice Department gets far fewer PRRs (10% of the federal total), but its bill for 2017 came to $83 million. While the reasons for this are complex and multi-faceted, they do indicate that there is huge scope for savings, even for the mighty federal bureau.
Most state and local agencies lack the staff and technological resources to monitor how well they are handling PRRs. Without a culture of self-assessment – or a process of collecting the statistics that could kick-start such a process – agencies will never get on top of costs. The first step towards a more mature PRR process is to know what these costs are, and to weigh up if the right technology could cut them, or at least make them more predictable.
Our white paper, The Hidden Cost of Public Records Requests, is a high-level exploration of these issues, which affect all agencies, great and small.