Openness has improved, but FOIA reform still needed

Amanda Becker | Freedom of Information | Feature | September 30, 2009

Despite President Barack Obama's emphasis on running a more transparent government, federal agencies have been slow to adapt to changes in the law and the new openness directives, open government advocates testified during a Senate Judiciary Committee hearing Wednesday.

The focus of the hearing was the Office of Government Information Services and other key provisions of the Open Government Act of 2007 -- primarily whether they have been implemented and whether they are effective. Senate Judiciary Chairman Patrick Leahy, D-Vt., spoke at the hearing about the importance of a transparent and accountable government.

"We have the right to know what government is doing -- more importantly, a right to know when the government screws up," he said. He noted that increasingly, government agencies have been removing information from their Web sites, which he attributed to "part paranoia, part national security concern and part 'don't want you poking around,'" which he said bothers him most.

Witness Tom Curley, president and CEO of The Associated Press, agreed that information is not yet being released as it could.

"We in the news media are still finding federal agencies unresponsive to the declarations from the White House that government must become more open," Curley said. "We appreciate the change in policy direction, but the change hasn't yet reached the street."

The hearing was also the first time Congress heard from Miriam Nisbet, the newly installed director of OGIS, who updated the committee about the office's progress. OGIS was created by the Open Government Act of 2007 to monitor agency compliance, mediate FOIA disputes and, Nisbet added, serve as a source of information for requesters and agencies.

Sen. Al Franken, D-Minn., asked Nisbet what her office would do about the excessive delay in processing some requests, noting that some requests have languished for as long as 17 years. 

"Immediately, we will begin mediating where there are stubborn cases and identify the different problems," Nisbet responded.

Also testifying for the government, Associate Attorney General Thomas Perrelli said there has been a "culture change" in how chief FOIA officers apply a presumption of disclosure within their agencies. But in the next panel, Curley countered that in practice agency culture can be slow to change.

"The secrecy reflex at too many agencies remains firmly in place," Curley testified.

Meredith Fuchs, the general counsel of the National Security Archive, which frequently files FOIA requests, suggested that the Department of Justice report on the pending cases that it has re-reviewed based Attorney General Eric Holder's March memo on FOIA that directed a presumption of openness.

Perelli said that Justice Department lawyers were re-reviewing pending cases based on the new FOIA guidelines and Fuchs suggested that a discussion about whether the agency's position has changed or remained the same would be helpful.

Fuchs also urged the Judiciary Committee to reform FOIA to recognize the Office of Administration as a government agency. The OA controls much of the White House's e-mail, which is the subject of several FOIA lawsuits. She also noted that very few of the agencies have implemented internal regulations that she said would "help solidify execution of the law."

Curley concluded to the committee that improved openness would require the continued funding of OGIS; examining FOIA's privacy exemptions, which are often broadly applied in court; and a strengthening of the law to make FOIA exemptions that are added to non-FOIA legislation more apparent.

Sens. Amy Klobuchar, D-Minn., and Sheldon Whitehouse, D-RI, also attended the hearing.