Making FOIA More Free and Open

The GovLab Senior Advisor Joel Gurin: “Earlier this week, the Wall Street Journal reported the results of an ambitious investigation: The paper reviewed more than 100 thousand Freedom of Information Act requests from the last five years and found that a large number have been coming from investment firms and hedge funds. In what one portfolio manager called “an information arms race,” these firms are asking government agencies involved  in health, energy, and other areas to give them information about companies and products that fall under an agency’s jurisdiction. For example, the U.S. Food and Drug Administration receives many requests for “adverse event reports” on different drugs – a potential sign that the drug is problematic and that its manufacturer’s stock may be due for a fall.

There’s nothing wrong with investors using this information.  It’s strategically smart, and under the U.S. Freedom of Information Act (FOIA), much of this information has to be released. In a sense, FOIA, passed in 1966, was an early commitment to Open Data in the U.S. (It was also the first such law in the world except for Sweden’s, which predates it by two centuries.) What may be wrong, however, is that investment firms with deep pockets and expertise can  get information that the rest of us don’t know how to obtain. In practice, a law designed to increase public access to information is being used for private gain.

With FOIA, you can ask anybody and you can ask for anything.

Miriam Nisbet,  who heads the Office of Government Information Services in the National Archives and Records Administration, is one of the federal officials trying to make FOIA a more truly open system. Her office, which was launched in 2009, serves as a kind of FOIA ombudsman to work with federal agencies that implement FOIA and mediate disputes between requesters and requestees. “FOIA is pretty simple in concept,” she says. “You can ask anybody and you can ask for anything.” Her office helps make sure it works in practice.

FOIA operates with a “release to one, release to all” policy. Once a document has been released to one person under FOIA, anyone else can get a copy simply by asking for it.  If someone has already successfully FOIA’d information you need – for example, if a hedge fund has learned that there are a lot of adverse reports about an arthritis drug you’re taking – then the information is public, and you can theoretically get a copy of it without going through the FOIA process.

The problem is that there’s no practical way to find out if someone already has the answer to a question you’re thinking of using FOIA for. The federal government gets about 650 thousand FOIA requests a year, and they’re handled by different bureaus in about a hundred agencies.  Each bureau maintains a chronological log of the requests it’s received and how they were handled, but the logs are often primitive at best: They can be simple Word documents that are marked up, scanned, and put somewhere on some website.

The concept of FOIA Online is to have a one-stop shop for requests.

The FOIA system could provide a huge amount of useful information efficiently and democratically if it coordinated responses to FOIA requests and provided them in searchable, downloadable electronic form – that is, if it provided information released through FOIA as true Open Data. A plan to do that is now in the works. The Office of Government Information Services has worked with the Environmental Protection Agency and others to create FOIA Online, an electronic system that can organize FOIA requests and documents across agencies for the first time. “The concept,” says Nisbet, “is to have a one-stop shop for making requests, finding out what is happening to your request, but also to see who else is making requests and what has been released.”

Although FOIA Online was launched a year ago, agencies are not currently required to use it and only a few have signed on so far. But organizations outside of government are starting to make FOIA a more effective source of Open Data. In addition to the WhatDoTheyKnow website in the UK and several other countries, which I wrote about here recently, a New Jersey-based nonprofit called MuckRock makes it easier for individuals to navigate the FOIA system through online forms it provides, and a new organization called FOIA Machine is helping people who have requests to file. There are also efforts in Congress to reform FOIA and make the system more efficient and effective, both for those who use it and for those who run it.

Should important medical information have to be FOIA’d in the first place?

Beyond FOIA, this week’s Wall Street Journal article points to a major gap in Open Data: The fact that reports of drug side effects, which could affect many thousands of people, are not easily available to the public. One new company called MedWatcher, which was an exhibitor at the recent Health Datapalooza, is now working with the FDA to make adverse events easier to report and to access. The All Trials campaign, based in the UK, has an even broader agenda: They want drug companies to publish the results of all their clinical trials, not just the successful ones, to give doctors and the public a true picture of drug effectiveness. As the FOIA process comes under scrutiny, we may move to a system where important medical information no longer has to be FOIA’d in the first place.”


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