In
recent years, the use of contractors has become an increasingly significant
part of the administration of the Freedom of Information Act at growing numbers
of federal agencies. This comes at a time when the numbers of FOIA requests
received by many agencies, as well as across the government overall, are on
the rise. See, e.g., FOIA Post, "Summary
of Annual FOIA Reports for Fiscal Year 2003" (posted 7/29/04) (reporting
that annual FOIA requests reached three million in the last fiscal year). To
help deal with this, many departments and agencies, both large and small, now
make use of contractors for various aspects of their handling of FOIA requests
-- agencies such as the Department of Defense, the Department of Homeland Security
("DHS"), the Pension Benefit Guaranty Corporation ("PBGC"), the Department of
State, the Department of the Interior, the National Security Agency ("NSA"),
the Department of Energy, the Department of Transportation, and the Department
of Justice's Executive Office for United States Attorneys.
Generally
speaking, government agencies that use contractors or contract employees in
their FOIA operations are satisfied with the quality of the work that they do.
As a general rule, contractors are allowed to do most of the work that government
FOIA employees do, but their work always is subject to ultimate approval by
government employees. The legal standard governing any "contracting out" of
FOIA work is that "inherently governmental functions" must be performed by government
employees, while other functions may be performed by contractors. This all constitutes
a big change from earlier days of the FOIA, more than two decades ago, when
the use of contractors for FOIA work was less legally certain and relatively
rare. SeeFOIA Update,
Vol. IV, No. 1, at 2 (noting early efforts by some agencies to use contractors
for duplication services under the FOIA, and encouraging agencies to extend
"the concept of contracting out" in accordance with applicable Comptroller General
decisions). By contrast, the legitimacy of using contractors generally is undisputed
and the practice is relatively commonplace today.
The
Scope of Contractor FOIA Work
By
and large, the departments and agencies that make use of contractors in their
FOIA operations give them a significant share of their total FOIA work. At the
newly created Department of Homeland Security, for example, contractors perform
approximately one-third of all headquarters FOIA work. The same is true at the
Department of State, where contractors likewise undertake a wide range of FOIA
activities. Similarly, at the PBGC, a much smaller agency, the ideal staff consists
of two contractor employees out of a total of five or six FOIA personnel, and
at the Justice Department's Executive Office for United States Attorneys eight
out of twenty-six FOIA personnel are contractor employees. At the main FOIA
office both of the Department of the Interior and of one of its sub-agencies,
the Bureau of Land Management ("BLM"), contractors perform approximately half
of the overall work. Surprisingly, one agency where contractor personnel play
no direct role in the actual processing of FOIA requests is the Department of
Energy -- an agency heavily laden with contractors elsewhere -- where contractors
perform strictly clerical duties in support of FOIA processing.
Indeed,
at most agencies that now use contractors to support their FOIA operations,
the scope of FOIA duties performed by contractors is nearly as broad as of those
performed by government employees. At DHS, subject to the final approval of
a government employee, many contractor personnel perform all aspects of entry-level
FOIA-request processing. This is also true of the scope of the work that contractors
perform at the Department of Defense, the Department of State, the PBGC, and
the Executive Office for United States Attorneys at the Department of Justice.
Some
agencies further limit the scope of their contractors' FOIA-processing work.
At the Department of the Interior, for example, only contract personnel who
have worked there for a substantial length of time are permitted to process
FOIA requests; they may view almost all documents that the government employees
view, but cannot put anything down on paper without review by a government employee.
At NSA, only government employees may correspond with requesters, search for
or "pull" responsive records, and determine fee categories.
At
the Department of Energy, as previously mentioned, contract employees are more
strictly limited to performing clerical support functions in FOIA offices and
none of the actual FOIA processing. By comparison, the Transportation Security
Administration ("TSA"), now a part of DHS, does not allow contractors to handle
documents containing sensitive information, but does not otherwise limit its
contractors' duties. BLM allows its contractor to perform all aspects of FOIA
processing and to see nearly all documents, but specifies that any official
correspondence to the requester must bear the name of a government employee,
not the contractor.
There
also is a good deal of variation in whether agencies grant security clearances
to contractors for FOIA purposes, but this variation usually has more to do
with the nature of the documents that an agency handles than with any distinction
between contractor personnel and government employees per se. Some or all contractors
have security clearances at DHS, the Department of State, the Justice Department's
Executive Office for United States Attorneys, the Department of Defense, the
PBGC, and TSA. In the case of the Department of Defense, no FOIA contractor
yet has been granted access to compartmentalized top secret information, but
that might be just a matter of time. Similarly, TSA does not yet allow contractors
to see sensitive documents, but this is due to the time necessary to train the
contractors to handle the documents rather than specific concerns about the
contractors themselves.
In
sum, nearly all of the agencies that use contract personnel for purposes of
FOIA administration grant them a major role in accomplishing FOIA-processing
tasks and though there is some variation in the types of such work that contractors
can do, the trend clearly is in favor of allowing contractors to do any work
that does not require "discretionary decisionmaking." The reason underlying
this limitation goes to the heart of the legal basis for contracting for support
of agency activities such as the administration of the FOIA.
Legal
Basis for Contracting
The
legal basis for contracting is the Office of Management and Budget's policy
statement of September 23, 1992, regarding the meaning of "inherently governmental
functions," as revised just last year. SeeOMB
Circ. No. A-76, Rev. (May 29, 2003) (revising Office
of Federal Procurement Policy Letter 92-1, Sept. 23, 1992, "Inherently Governmental
Functions"). This governmentwide policy "circular" directs government agencies
to classify all government activities as either "commercial" or "inherently
governmental." Id. Pursuant to it, government employees must perform
all "inherently governmental" activities -- and for activities classified as
"commercial," departments and agencies must give the task to whoever will most
inexpensively and efficiently perform it. Id.
The
recently updated circular differs from the original OMB circular of 1992, which
did not mandate that commercial activities be performed by outside contractors,
but merely stated that it was permissible for contractors to perform such activities.
SeeOMB
Office of Federal Procurement Policy Letter 92-1, Sept. 23, 1992, "Inherently
Governmental Functions." The 1992 circular stated that any part of FOIA administration
that requires the exercise of agency "discretion" is an "inherently governmental
activity." Id. FOIA offices thus logically proceed on the assumption
that at least some of the work involved in FOIA processing is, of course, "inherently
governmental." AccordFOIA
Update, Vol. IV, No. 1, at 2 (citing, e.g., Comp. Gen. Decisions No.
B-205151, Mar. 1, 1982, and No. B-166506, Oct. 20, 1975).
In
surveying agencies on their use of contractors for purposes of FOIA administration,
the Office of Information and Privacy has found that departments and agencies
vary widely in their understanding of the legal basis for such contracting.
DHS generally regards FOIA processing as an inherently governmental function,
and the FOIA work performed by its contractors is specifically limited so as
not to include any discretionary decisionmaking. Similarly, the Department of
Defense, BLM, the Department of State, and the Department of Transportation
act based upon the premise that FOIA decisionmaking, as opposed to "simple"
processing of requests, is inherently governmental. The FOIA offices at the
Justice Department's Executive Office for United States Attorneys, the Department
of the Interior, and NSA operate likewise; though not specifically aware of
the OMB circular in relation to FOIA work, each knew that government and nongovernment
actors were different in that all work performed by a contractor must be reviewed
by a staff supervisor. Other agencies were essentially unaware of the exact
legal basis for using contractors for FOIA work, however, which suggests that
the use of contractors in FOIA work is becoming so commonplace that the authority
for agency activity in this area now stands unquestioned as a general rule.
Quality
of Work
Overall,
the departments and agencies that rely on contractors in their administration
of the FOIA generally are pleased with the quality of FOIA work done by their
contractors. In fact, subject to budgetary constraints, many of them would like
to hire more contractors. All of the agencies surveyed by OIP except one, BLM,
described their contractors' performance as either "good" or "excellent." In
the case of BLM, the first contractor that it used performed well, but the second
contractor did not meet quality standards and was terminated. In contrast, BLM's
parent agency, the Department of the Interior, is so satisfied with the work
of its FOIA contractors elsewhere in the agency that it would like to hire some
of them as full-time permanent employees if it were possible. (It is not uncommon
for agency FOIA personnel to begin working for an agency as a contract employee
and then be hired by that agency as a permanent employee; indeed, one of OIP's
senior attorneys first worked for the Justice Department as a contract employee
in the Department's Civil Rights Division.)
The
Department of Transportation, for its part, has found that the incentives created
by free market competition between contractors and the ease of arranging for
and terminating the services of contractors seems to yield competitive work
from contractors in comparison to government employees. Further, that agency,
as well as DHS, BLM, and the PBGC, all have found that FTE limitations sometimes
oblige them to use contractors rather than government employees. This has been
especially true at DHS, which as a new federal department is suffering "growing
pains" regarding the balance between its authorized staffing levels and its
budgetary allocations. Nevertheless, according to DHS as well as other agencies,
using government employees for FOIA work is still preferable to using contractors,
all things being equal. In that vein, at least one agency, the PBGC, has observed
that Congress sometimes seems to be more willing to provide additional administrative
funding for private contractors than for new FTE government positions.
Perhaps
the best indication of both the quality and the ubiquitousness of contractors
in the FOIA realm can be found in the fact that their use has become the subject
of attention in the training programs of the American Society of Access Professionals
(ASAP), which at its 2004 Annual Symposium held this past week devoted a lengthy
segment to the topic of "The Contractors." The moderator of this session, former
ASAP president William G. Ferroggiaro, readily speaks of his long familiarity
with the successful use of contractor personnel in the main FOIA office of the
Department of Defense, for example. Coincidentally, it was that FOIA office
that this past summer responded to an urgent governmentwide request by OMB's
general counsel for suddenly needed assistance with OMB's FOIA processing --
by "detailing" one of its most experienced contract employees to OMB to meet
that need.
Conclusion
Thus,
for a variety of reasons, perhaps most especially due to recent movements toward
privatizing the work of government in general, the use of contractors in the
processes of FOIA administration now has become a large part of the FOIA landscape
and is likely to remain so for some time to come. As this trend continues, OIP
will continue to examine it through presentations of "best practices" reviews
of this relatively new aspect of FOIA administration. Any agency wishing to
be profiled on its use of contractor personnel, as a model for other agencies,
should contact OIP with details of its own experience in this regard.
This FOIA Post article was prepared by Office of Information and Privacy law
clerks Jennifer C. Ellis and Sean O'Neill.(posted 9/30/04)
