Government Transparency And Toothless FOIA
February 4, 2013 by Sam Rolley
The Freedom of Information Act was enacted in 1966 to ensure the American public access to important information about the actions of the Federal government and its agencies. FOIA provides that any person has the right to request Federal agency records as long as disclosure doesn’t threaten national security. It also mandates that agencies voluntarily release certain information. But government transparency activists claim that the government has increasingly thwarted attempts to access information via FOIA to cover up its abuses and failures.
President Barack Obama boldly proclaimed during his first term that his would be “the most transparent” Presidential Administration in history and, along with Attorney General Eric Holder, urged Federal agencies to handle FOIA requests with a “spirit of cooperation.”
Unfortunately, in the years since Obama took office FOIA has become a less-than-effective means of getting information pertaining to government affairs because of myriad homeland security and “executive privilege” exemptions used to block FOIA inquiries. This was demonstrated recently when the American Civil Liberties Union sought information about the Justice Department’s policy regarding warrantless GPS tracking. Justice complied with the request to provide interdepartmental memos related to the issue, but the document was so heavily redacted that only a little more than two full pages of the 57-page document were readable. The information on those pages was mostly inconsequential and already public record.
In 2009, Holder issued new guidelines to the heads of Federal agencies meant to streamline their FOIA process and make more information available. But a recent audit from the National Security Archive found that 62 of the 99 government agencies have done nothing to update FOIA regulations; 56 of them had not even updated the policies since the passage of the 2007 OPEN Government Act. The 2007 act required “that agencies reform their fee structures, institute request tracking numbers, publish specific data on their FOIA output, and cooperate with the new FOIA mediators at the Office of Government Information Services.”
Beyond not making a priority of enforcing openness, the Obama executive branch has also allowed agencies to repeatedly thwart FOIA requests using the deliberative process privilege, which allows for executive branch communications to be kept secret. Though unrelated to FOIA, similar methods were used to keep Congress at bay as lawmakers attempted to determine how culpable Holder and other Administration officials were in the deadly failures of the controversial Fast and Furious gun running scheme.
Last week, a group of open-government activists called on lawmakers to update FOIA, not only to rethink some of the 250 to 300 loopholes that emasculate the act but also to include 21st century reforms that could get information to the public in a timelier manner.
“Outdated agency regulations really mean there’s an opportunity here for a second-term Obama to standardize best practices and bring all the agencies up to his day-one openness pledge,” said Tom Blanton, director of the National Security Archive.
Beyond Congressional initiatives to do away with some of the loopholes that allow agencies to thwart FOIA requests, the National Security Archive recommends the following steps be taken to increase government transparency:
- Joining the FOIAonline portal, a government-wide, one stop shop for requesting, tracking, and proactively posting digital versions of FOIA’d documents. (Currently only six agencies have joined.)
- Embracing direct communications with requesters to focus, narrow, and clarify requests rather than rejecting outright requests not perfectly constructed.
- Ending the practice of using fees to discourage requests. All news media (online or print), students, teachers, new media, bloggers, tweeters, and online-only publications should be granted fee waivers. (Recouped FOIA fees pay for just one percent of all FOIA costs.)
- Substantially reducing the use of discretionary withholdings, such as the b(5) “deliberative process” exemption. Congress mandated that documents under the Presidential Records Act -concerning decisions made at the highest level- cannot be withheld under the b(5) exemption after the president leaves office. At the very least, this standard should also apply to documents requested under FOIA.
- Preventing requests from becoming lost in “consultation” and “referral” black holes where multiple (sometimes endless) reviews and re-reviews can cause extreme delays in releases or even lost requests. These black holes can be avoided by sending requests for consultation and/or referral as rarely as possible; informing requesters of the status of their requests (even if they are being processed by a different component or agency); and continuing to track the progress and ensure the completion of FOIA requests, even after they have been passed along to other parts of the government.
- Proactively posting documents of likely interest to the public, such as the Department of the Interior’s response to the 2010 Deep Water Horizon Gulf oil spill, as required by the 1996 e-FOIA Amendments.
According to the Archive’s FOIA coordinator, Nate Jones, the Obama could still make good on his transparency promise.
“These forgotten regulations and FOIA backslides demonstrate that President Obama needs to install a Transparency Bulldog in the White House whose sole responsibility is to track, cajole, and force federal agencies into complying with the law of the Freedom of Information Act and ensure that the President’s commitments to openness are not ignored by the agencies he leads,” he said.
Obama, however, may be less willing to tackle the issue of FOIA reform today than he was on his first day in the Oval Office. A review by the Transactional Records Access Clearinghouse (TRAC) released in December showed that Federal agencies were being sued for information under the act more times during the first Obama term than were during the final four years of the George W. Bush Administration. The suits result when the agencies either take an unreasonable amount of time to produce information requested under FOIA or outright deny access.
In all, the FOIA lawsuits jumped by 28 percent, with the most drastic increases in suits being filed against the State Department (111 percent), Department of Agriculture (67 percent), Environmental Protection Agency and Department of Veterans Affairs (60 percent), as well as the Department of Justice (50 percent).
TRAC also noted that the suits were coming from a political diverse group of organizations: “Among the most active were attorneys associated with Judicial Watch, a conservative group and liberal groups such as the American Civil Liberties Union and its local affiliates. Also very active were attorneys for Public Citizen Litigation Group, Citizens for Responsibility and Ethics in Washington, and attorney David Sobel.”
Transparency groups concede that Congress should intervene to make Obama’s transparency promise a reality.