The U.S. Defense Department has drafted regulations identifying Freedom of Information Act work that can’t be outsourced to contractors.
The Pentagon describes 11 tasks as “inherently governmental” and off-limits to vendors who help handle the agency’s FOIA requests, according to the proposal obtained by Bloomberg.
The rules make clear that agency employees rather than contractors should be approving FOIA policies, interpreting requests for information, and conducting FOIA training in certain cases.
“Primarily, activities that require the exercise of substantial discretion in applying government authority or in making decisions for the government are inherently governmental,” according to the document.
The regulations may be available for public comment as early as March, said James Hogan, chief of the Pentagon’s Defense Freedom of Information Policy Office, who spoke today at an American Society of Access Professionals conference in Washington.
Hogan wasn’t speaking on behalf of the Defense Department at the session.
At least 25 federal agencies are outsourcing parts of the FOIA process, Bloomberg reported in an Oct. 9 story. The contractors, sometimes using workers with security clearances, are building FOIA software, corresponding with requesters, redacting documents and recommending what information should be withheld.
The U.S. 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
Since fiscal 2009, the year President Barack Obama took office, spending on FOIA-related contracts jumped about 40 percent.
At least $26.5 million in FOIA contracts were awarded by the government in fiscal 2012, up from $19.1 million in 2009.
Some transparency advocates have said they are concerned about the outsourcing trend because it complicates the process and may make an agency less accountable.
Charlene Thomas, a senior FOIA official at the State Department, said that it shouldn’t look like “contractors are running the show.” Vendors should have supervisors who are federal employees, she said at today’s conference.
Thomas, who also wasn’t speaking on behalf of her agency, and Hogan discussed some benefits of having contractors, including the ability to hire vendors for quick short-term projects and harnessing expertise that wouldn’t otherwise be available.
It’s also easier to fire contractors quickly if they aren’t doing their job, Hogan said.
Contractors should be allowed to talk with people who have filed FOIA requests but shouldn’t be able to decide the approach taken in negotiations with them, he said.
Hogan said he’d seen cases at the Pentagon where contractors in negotiations with FOIA requesters had inappropriately presented “a government position” and that he had called the behavior to their attention.
“It’s not obvious, it’s not drastic, it’s not serious, but it’s enough that I’m saying: I’m not comfortable with this,” Hogan said.
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