Senate Judiciary Committee discusses FOIA improvements

Christine Beckett | Freedom of Information | Feature | March 15, 2011

The U.S. Senate Judiciary Committee on Tuesday heard from government officials and transparency advocates about how to improve the federal Freedom of Information Act in the "Digital Age." Committee members present at the hearing and witnesses seemed to agree that more needs to be done to make records accessible, and using the Internet to proactively release records would be a step in the right direction.

Committee Chairman Patrick Leahy, D-Vt., started the proceedings by proclaiming the "right to know is a cornerstone of our democracy" and said a FOIA law strengthened by reform and proper implementation is necessary.

Ranking Member Chuck Grassley, R-Iowa, echoed Leahy's points, but also railed against President Barack Obama, saying Obama's executive order proclaiming a presumption toward openness, issued on his first full day in office, was "mere words." Grassley also accused the administration and its appointees of actively stonewalling records requests.

The hearing's first panel included members of government agencies focused on FOIA issues.

Melanie Pustay, the director of the Office of Information Policy at the Department of Justice, which is responsible for encouraging agency compliance with FOIA, testified that federal agencies are doing a better job responding to requests and backlogs have been reduced. She also said agencies were doing a better job of proactively disclosing records by posting them on their websites. She also touted a new government website, FOIA.gov, which launched Monday and has statistics about agency compliance. Pustay said she hopes that the website will, in the future, have a search function to locate documents within agency databases.

In her testimony, Miriam Nisbet, director of the Office of Government Information Services, which serves as a FOIA ombudsman, touted OGIS' role in the FOIA process: helping to resolve conflicts between requesters and agencies. While OGIS has yet to conduct any formal mediations, Nisbet said she believes the informal process has worked well and has helped close the vast majority of its cases. She added that she believes "the parties walked away satisfied" from those cases.

The second panel consisted of transparency advocates Sarah Cohen, representing the Sunshine in Government Initiative, John Podesta, the president and chief executive officer of the Center for American Progress, and Thomas Fitton, president of Judicial Watch.

Cohen testified that proactive disclosures are inconsistent and certain documents that are required to be online -- such as records pertaining to the reconstruction efforts in Iraq and Afghanistan -- are inconsistently made available on agency websites. Documents are required to be online either because of the request frequency or due to Congressional mandate. Even when they are posted, the agency websites are so poorly designed that "the chance that regular citizens or reporters . . . would find them is slim," Cohen said.

Podesta, who also served as White House Chief of Staff to President Bill Clinton and on Obama's transition team, testified that "disclosure should be the general rule" and "it should be done through the Internet -- so everyone has actual access, not just the right to access." Podesta said that a searchable FOIA database would make access easier for the general public and be beneficial for the government by reducing the number of requests that need to be filed with an agency.

Fitton criticized the Obama administration strongly in his testimony, calling it "less transparent" and "tougher and trickier" than the Bush administration. "I can't quite fathom how this administration can laud a new era of transparency, while over $1 trillion in government spending is shielded from practical oversight and scrutiny by the American people," he said.

Fitton and Grassely spent significant time excoriating the Obama administration for the July Associated Press report that accused the Department of Homeland Security of politicizing FOIA requests and stalling responses to requesters when information was deemed too "politically sensitive."

The hearing also focused on how to improve access to documents online and how to get responses to FOIA requests in a more timely manner. Those testifying said that putting more documents online, as suggested by Sens. Sheldon Whitehouse, D-R.I., and Al Franken, D-Minn., could make the system more efficient because the need for FOIA requests would lessen if the information was already public.

However, Fitton pointed out that the requests that currently cause the most trouble and lead to lawsuits are ones that will not be avoided by more proactive disclosures. "Matters of public controversy won't go on [FOIA.gov or other proposed websites]," he said. "Disputes are over the information that is unlikely to ever go on the Internet."

With all the talk about lengthy response times and disputes, Sen. John Cornyn, R-Texas, expressed frustration with agencies' view on the FOIA process. "Too often agencies see requests as a nuisance to be avoided."

The senators and panelists agreed that the current system of responding to FOIA is too slow and overburdened. The sentiment was that a partial solution to the current problems with delays and backlogs is to put more information on the Internet and enable a search feature to allow the public to check to see if the information is already available before filing a FOIA request. With those "day-to-day" requests, as Whitehouse referred to them, being taking care of without a formal FOIA filing, the agencies can, theoretically, use their resources to better respond to the more difficult requests.