March 29, 2022

Durbin: We Need to Look to Advanced Technology to Aid FOIA Responses, Increase Government Transparency

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned Bobak Talebian, Director of the Office of Information Policy at the Justice Department, during the Senate Judiciary Committee hearing entitled “The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century.”  Durbin started by asking Talebian about a report on FOIA processing during the COVID-19 pandemic that the Government Accountability Office (GAO) issued in January following a request by Durbin and Senators Patrick Leahy (D-VT),Chuck Grassley (R-IA), and John Cornyn (R-TX).

“In fiscal years 2012 to 2020, the government-wide backlog in FOIA requests increased by 97 percent… How much of this… how much would you associate with our new mode of communication?  In other words, we’re not requesting documents—copies of documents—so much as communications through high-tech needs,” Durbin asked.

Talebian answered by affirming that modern technologies—such as text messaging and social media usage—have impacted the complexity and volume of records that might be responsive to a FOIA request, saying that “this is a challenge, a modern day challenge, but it’s one that we’re working on to meet the FOIA’s demands.”

Building on that answer, Durbin then asked Talebian if the executive branch is considering using artificial intelligence to meet those demands.

“Is our federal government flirting with the idea or serious?” Durbin continued.

Talebian responded, “I would say we’re very serious.  We want the best tools because, at the end of the day, we want to be as responsive and apply the law as fully and effectively as we can.”  He explained some of the efforts of the Chief FOIA Officers Council (CFOC) Technology Committee Working Group, including a workshop for FOIA professionals to learn about artificial intelligence.

Durbin then went on to ask about the second item that stood out to him in the GAO report: the impact of increased FOIA litigation on agency resources.

“Can you describe, in general terms, the proliferation of litigation: how it occurs and to what level?” Durbin asked.

Talebian responded, “Since 2012, there’s been a steady increase in litigation.  It’s a small percentage of the 800,000 requests that agencies receive and process, but it does demand a significant amount of resources.”  Asked to give a couple examples, Talebian cited that when there is a complex topic of significant interest that results in a lawsuit, the agency may not have the resources and ability to respond within the standard 20 or 30 day timeline.  In order to avoid that situation, they try to work with FOIA requesters to settle on a more simplified request that provides the records they want in a faster timeline.  “We want FOIA litigation to be the last resort,” he said.

Video of Durbin’s questions in Committee is available here.

Audio of Durbin’s questions in Committee is available here.

Footage of Durbin’s questions in Committee is available here for TV Stations.

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