The Freedom of Information Act, the federal law that requires the disclosure of information and documents controlled by the US government, is one of the most important measures ensuring the transparency of American democracy. Yet it is flawed. Reporters, academics, and activists have no shortage of war stories when it comes to delays or even outright denials of their requests for public information. Now a new lawsuit adds another alleged reason to the long list of dodges government agencies use to get around FOIA requests: the FBI, the suit claims, uses a grossly outdated software system that’s designed to return lousy search results.
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The federal suit filed by MIT national security researcher Ryan Shapiro on the fiftieth anniversary of the passage of FOIA this month claims that the FBI is using software developed in 1995 to respond to FOIA requests. The software is so old, according to Shapiro, that it doesn’t even have a graphical user interface, meaning no mouse or icons. “You’re dealing with the old IBM green screens,” former FBI chief technology officer Jack Israel once described the computer system in a Q&A with website FierceGovernmentIT four years ago, which was referenced in Shapiro’s complaint. “You’re not dealing with a web-based environment, which every one is used to from the Internet.” But the interface isn’t the heart of the problem. The issue, Shapiro says, is that the software performs needlessly rudimentary searches—something akin to searching a card catalog at a library—when better technology is readily available.
“It’s a totally arbitrary and, even worse, totally inconsistent practice,” Shapiro says. The FBI did not respond to WIRED’s request for comment in time for publication.
Relying on court testimony from federal agents, Shapiro pieced together what he says is the FBI’s process for responding to FOIA requests. Shapiro says the FBI’s main records database, the Central Records System, isn’t itself searchable. Agents have to conduct the search on a mirror called the Automated Case Support system via an application called Universal Index to search a card catalog-like database. But this amounts to hunting for relevant documents by relying on the topic of a book alone when the person making the FOIA request is, to extend the library metaphor, looking for a specific title or information contained on a specific page.
Shapiro contends that FBI does have better tools at its disposal for better case management and full-text search, including a $425 million system called Sentinel. But he says the agency, according to policy, will almost never use the more robust system for FOIAs. If he’s right, that means many requesters may get notices back saying the FBI turned up with nothing when the records they are looking for actually do exist.
To be clear, FOIA doesn’t require a government agency to serve up records every time a request comes through—just to conduct a search “reasonably calculated” to locate such records. By deliberately using lousy search practices, Shapiro contends, the FBI can appear to be in compliance with the law without actually looking for the records in good faith. While he concedes that FOIA delays at other government agencies could have more to do with a lack of resources or more straightforward bureaucratic sluggishness, Shapiro insists the FBI intentionally frustrates FOIA requests because of an entrenched culture of secrecy.
Information Frustration
Shapiro has studied the FBI since 2003 when he was getting his master’s degree in modern American history from American University. He filed his first FOIA requests in 2005, and by 2010, he says he was aggressively pursuing FOIA work against the FBI and other national security agencies. Currently, Shapiro has ten ongoing FOIA lawsuits against the FBI, NSA, DOJ and others for failing to comply with the Freedom of Information Act.
He’s hardly the first person to file suit against a government agency for foot-dragging on FOIA. But the tactic of laying the blame on an agency’s tech may be unique. “It’s hard to say that there’s one big problem that’s causing a frustration of FOIAs across all agencies,” says Aaron Mackey, a legal fellow at the Electronic Frontier Foundation. But he agrees that the FOIA system overall is broken, not least because frustration over and inadequate responses may just lead the average citizen to give up. “It’s been a big concern for transparency advocates for a long time,” Mackey says. And suing the government will in most cases simply be too much of a hassle—or, given pricey lawyer fees, way too expensive.
‘FOIA is too often thought of as an afterthought.’ Aaron Mackey, Electronic Frontier Foundation
It’s possible that progress is afoot, but like many FOIA responses themselves, it’s a slow process. Last month, President Obama signed a bill aimed at improving the government’s sluggish responses to FOIA requests—though the Obama administration itself has been among the most intensely secretive in decades. One could even argue the problem is a trickle-down attitude towards transparency that critically needs to change.
“FOIA is too often thought of as an afterthought,” says Mackey. “If government exists for the public and for the public’s benefit, then its records should be available for the public to inspect.”