It’s that time again.
Nearly a decade has passed since the last major reform of the Freedom of Information Act. Since President Lyndon B. Johnson signed the act into law in 1966, it has undergone significant reforms about once every 10 years: 1974, 1986 and 1996.
During the past few years, many lawmakers have tried unsuccessfully to push for more modifications. But this year is different. Now, legislators from both ends of the political spectrum have teamed up to endorse legislation amending FOIA.
“What is different is that for the first time, someone with the majority has come forward and said there is some problem in this area, and we ought to have some corrective legislation,” said Pete Weitzel, coordinator for the Coalition for Journalists for Open Government.
This legislator he is referring to is Sen. John Cornyn, R-Texas. As a longtime advocate for freedom of information, Cornyn has joined political forces with Sen. Patrick Leahy, D-Vt., to introduce three FOIA-reform bills to the Senate since February. A veteran of promoting open access, Leahy sponsored the Electronic FOIA during the last major FOIA reform in 1996.
In light of a new study scrutinizing how agencies handle FOIA requests, the bipartisan duo hopes to jumpstart the system by restoring accountability and openness of the government.
Rise in Requests
The increasing focus legislators are giving FOIA reform could be due to the considerable rise in requests since 2002. In May this year, the U.S. Government Accountability Office released a report titled the “Implementation of the Freedom of Information Act.” GAO analyzed the annual reports of 25 agencies that account for more than 97 percent of all federal government FOIA requests.
The study found that in 2004, these agencies received nearly 4 million FOIA requests — up 25 percent from the previous year and 71 percent since 2002.
Nearly 88 percent of these requests went to only three agencies: the Department of Veterans Affairs, the Social Security Administration and the Department of Health and Human Services. These agencies handle individuals’ personal information such as military personnel records, genealogical information and medical records. Due to the nature of the requests, the agencies released all information more than 90 percent of the time.
As for the other 22 agencies, only eight granted full access for more than 60 percent of requests, and three agencies disclosed all information in less than 20 percent of all cases: the State agency, the Central Intelligence Agency and the National Science Foundation.
The GAO report also discovered that, as a result of the huge number of requests these agencies receive, backlogs of pending requests have increased 14 percent since 2002.
These backlogs cause many people to wait longer for responses. Even though the law requires agencies to respond within 20 days of receiving the request, there is no time constraint for them to make the records available.
This can discourage the public and the media from using open access laws to their advantage.
“I think there are relatively few newspaper reporters who in fact use (FOIA) simply because it takes so long,” Weitzel said. “You start out with the fact that they don’t even have to respond for 20 days. That blows most deadlines.”
Some agencies, such as the Department of Justice, took up to 137 days to process what the GAO considers a simple request. For complex requests, some agencies required more than three years. The Department of Energy reported taking 916 days to handle a complex request. Similarly, the Department of Agriculture took up to 800 days.
“So they go into some of these tactics that are designed to keep you waiting, and keep you waiting, and keep you waiting,” Weitzel said. “They force you through hoops and appeals processes before finally getting the records.”
Mark of the ‘memo’
In recent years, many have blamed FOIA delays and denials on the memorandum Attorney General John Ashcroft forwarded to agencies in October 2001. After the events of Sept. 11, Ashcroft urged agencies to strongly consider the “fundamental values” of national security, personal privacy and effective law enforcement before releasing information. He told agencies that if they withhold information, the Department of Justice would defend their decision if they had a “sound legal basis.”
These three words strayed directly from the former 1993 policy of Attorney General Janet Reno that created a “presumption of disclosure.” Her Oct. 4 memo stated, “The department will no longer defend an agency’s withholding of information merely because there is a ‘substantial legal basis’ for doing so.”
Many journalists feel the Ashcroft memo created hesitation among agencies, discouraging them from releasing information for fear of repercussions.
“The default position is to withhold,” Weitzel said. “If in doubt, withhold. There might ultimately be a lawsuit, but you personally can’t get in trouble in any way. If you release something you shouldn’t, that could be very adverse.”
While many share this outlook, a 2003 GAO study found 54.7 percent of FOIA officers reported agencies’ willingness to disclose either didn’t change or increased over the past years. Merely one-third of officers reported a decrease in the likelihood of agencies releasing information, and 75 percent of these mentioned the Ashcroft memo as the instigator of the change. In other words, of all FOIA officers questioned, only about 23 percent felt the memo had a negative impact on the effectiveness of FOIA.
Apart from the memo, Don Stewart, the communications director for Cornyn, said there is a natural inclination for agencies of both parties to be unenthusiastic in disclosing information that might reflect on them negatively. However, he said accessing information has the ability to be beneficial for both the requesters and government bodies.
“We will have a better handle on what needs to be done and what has been done right,” Stewart said. “There is a lot of good that people do within the agencies, people who are really working hard for the American people. We will learn the good as well as the bad.”
In need of change
Since Cornyn and Leahy proposed their first FOIA reform bill Feb. 16, the “OPEN Government Act of 2005,” they have introduced two others to the Senate. Meanwhile, other legislators also have started proposing their own acts to modify the open access law. While more than five bills drift through the legislative process, the three Cornyn-Leahy amendments receive the most publicity from media organizations and FOIA support groups.
Their bills would prevent Congress from creating hidden exemptions to FOIA and help hold agencies accountable for withholding information without a justifiable reason. To quicken response time, Cornyn and Leahy propose consequences for agencies that do not reply to a request within the given 20-day time limit. They also wish to create a 16-member advisory committee to recommend ways to reduce FOIA delays. To make the wait easier to requesters, they recommend implementing a tracking system so people can follow the status of their request via the Internet or telephone.
One of the most popular ideas in the OPEN Government Act is the creation of a FOIA ombudsman. This person would be responsible for ensuring agencies comply with open access laws and would recommend policy changes to Congress. In addition, the ombudsman would act as a mediator in disputes between a requester and an agency in hopes of resolving the problem without the need of a lawsuit and extensive legal fees.
Even if these proposed amendments don’t pass into law during this congressional session, some legal experts say the effort to reform FOIA will not dwindle in the coming years.
“There will be multiple bills dealing with the same topic. Everyone has their own agendas and issues they want to push,” said Bob Lystad, legal counsel for the Society of Professional Journalists and an attorney at Baker & Hostetler in D.C.
“Eventually, everyone will come together and agree on one certain package of reform. Just be patient.”
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