Transparency Outsourced as U.S. Hires Vendors for Disclosure Aid
The next time you submit a Freedom of Information Act request to the U.S. government, it may end up in the hands of a company you’ve never heard of.
At least 25 federal agencies are outsourcing parts of the FOIA process. The contractors, sometimes using workers with security clearances, are building FOIA software, corresponding with requesters, redacting documents and recommending what information should be withheld.
Since fiscal 2009, the year President Barack Obama took office, spending on FOIA-related contracts has jumped about 40 percent, leaving transparency advocates wondering who’s making the decisions on whether records should be kept secret.
“I’m very troubled by this example of offloading responsibility,” said Paul Light, a public service professor at New York University. “Once you put this in the hands of the contractors, you lose a degree of control in terms of goals like open government. That’s the real downside of it.”
On his first full day in office, Obama ordered federal officials to “usher in a new era of open government” and “act promptly” to make information public. Federal agencies instead have stepped up the use of exemptions to block the release of documents requested through FOIA, which is designed to open the process of government to citizens.
During the first year of the administration, cabinet agencies employed exemptions 466,402 times, a 50 percent jump from the last year of George W. Bush’s presidency. While exemption citations have since been reduced by 21 percent from that high, they still are above the level seen during the Bush administration, according to Justice Department data.
A recent Bloomberg News analysis also showed federal agencies weren’t complying with the 20-day deadline the law sets for agencies to release requested information.
Nineteen of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information. In all, just eight of the 57 federal agencies met Bloomberg’s FOIA requests for top officials’ travel costs within the 20-day window required by the act.
Earlier Article: Obama Cabinet Flunks Disclosure Test With 19 in 20 Ignoring Law
With contractors involved, the process becomes more complicated because the companies employing the FOIA workers aren’t directly subject to FOIA laws, said John Wonderlich, policy director at the Sunlight Foundation, a Washington-based group that pushes to open government records.
“If I was in charge of an agency and wanted to create an unaccountable FOIA process, the first thing I would do is put an outside contractor in charge of it because fewer of our accountability laws apply to them,” Wonderlich said in an interview. “It would just be another layer between me and the public.”
The government has awarded at least 250 FOIA-related contracts to more than 200 vendors since the fiscal year that ended Sept. 30, 2009, according to federal procurement data compiled by Bloomberg. None of the contracting records examined showed that the work was done by foreign-based companies.
Los Angeles-based AECOM Technology Corp. (ACM) has won at least $9.97 million in FOIA contracts, the most of any company, during that time period.
Other companies doing FOIA business have included New York- based Deloitte Consulting LLP, with about $1 million in FOIA- related contracts, and Arlington, Virginia-based CACI International Inc. (CACI), with at least $100,000 in similar contracts.
At least $26.5 million in FOIA contracts were awarded by the government in fiscal 2012, up from $19.1 million in 2009. The 2012 estimate may be conservative because the Defense Department, which typically represents more than two-thirds of U.S. awards, lags behind other agencies in reporting its contracts.
The surge isn’t limited to the Obama administration. The awards also increased during the last years of the Bush presidency, rising about 50 percent from 2007 to 2008.
Some contractors who work on the requests, especially at agencies like the Pentagon, have clearances so they’re able to read potentially sensitive documents being considered for release.
Tracy Russo, a spokeswoman for the Department of Justice, which is charged with monitoring how federal agencies respond to the open-records requests, didn’t respond to questions about the role of contractors.
Transparency advocates say they’re troubled by the contracting trend because it adds another level of opacity between citizens and their government.
“It muddies the chain of accountability,” Light said.
Integrity in Question
Using contractors to answer FOIA requests falls into a murky area of law, said Scott Amey, general counsel at the Washington-based Project on Government Oversight.
The vendors aren’t allowed to approve agency responses to FOIA requests because the work is considered “inherently governmental,” according to federal acquisition rules. On the other hand, they are permitted to “support” the preparation of responses.
While contractors may suggest what information will be released, redacted or denied, the agency must make the final decision, Amey said.
“They are walking right up to the line,” he said. “It still makes you question the integrity of the system if contractors play such a vital role and merely have their guidance approved.”
Some open-records advocates say hiring contractors to speed up the FOIA process may help federal agencies as they wrestle with budget cuts and a growing backlog of requests.
The number of processed FOIA requests across the government rose 5 percent to 631,424 in fiscal 2011 from 600,849 in fiscal 2010. Backlogged requests increased 20 percent to 83,490 filings during the same time period.
“I’m a fan of anything that makes things work faster,” said Rick Blum, coordinator for the Sunshine in Government Initiative, an Arlington, Virginia-based coalition of media groups.
Bloomberg tried to obtain comment from more than a dozen companies that have won contracts related to FOIA support. Most didn’t respond. AECOM declined to comment.
AINS Inc., based in Gaithersburg, Maryland, has provided software for managing FOIA requests and even making redactions, said Deryck Weaver, vice president of sales.
More than 200 federal agencies and offices use the firm’s software, Weaver said. The FOIA opportunities have been growing, and the firm recently decided to become more of a one-stop shop for FOIA, offering training in the open-records law and providing individuals on-site at agencies to work on requests.
“There’s huge competition for those jobs,” he said in an interview.
‘Beginning to End’
FOIA contractors know employees aren’t allowed to make decisions for the government and would never cross that line, said Randolph Wagner, chief financial officer for Wagner Resources Inc., another Gaithersburg-based company.
“It’s more like a cliff,” said Wagner, whose company derives about 50 to 60 percent of its revenue from FOIA-related tasks. “We don’t want to make the decision on behalf of the government.”
His employees, who work on-site at agencies, may be involved in the process from “beginning to end,” he said.
They receive requests, communicate with information seekers and contact agency officials to retrieve the records, Wagner said. When they receive the records, his employees provide recommendations about how much information can be released. A higher authority in the agency makes the final decision, Wagner said.
“Most of the interesting parts of what we do are in what doesn’t go out,” he said. “We work in a top-secret world and so we read things that can’t be released and in some cases we read it and understand why it can’t be released.”
The FOIA offices aren’t manned to handle all of the work, Wagner said. “In most cases, we outnumber the people we work with, three to one. They’re the decision-makers and we’re the workers.”
The Justice Department reported in 2008 that there were 3,691 full-time FOIA personnel across all departments and agencies. In fiscal 2011, the figure increased by 19 percent to 4,400, according to the department.
The work isn’t glamorous and there isn’t much opportunity for federal employees in FOIA offices to get promoted, Wagner said.
“If you want open transparency, you’ve got to have somebody work on it,” he said.
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