In 1996, the federal Freedom of Information Act was amended to specifically cover electronic information. The federal law only applies to records that are held in federal agencies, but states often imitate the federal law in passing new state legislation. The 1996 “Electronic Freedom of Information Act” also lengthened the time in which an agency must respond to FOI requests to 20 business days from 10 days. EFOIA created multiple tracks for processing requests and allows a requester to ask for “expedited processing” if a request “demonstrates a compelling need.” In many cases, journalists can show that their requests demonstrate such a need.

The law, codified at 5 U.S.C. § 552, defines a record to include any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.”

EFOIA also made it clear that computer searches to retrieve records did not constitute the creation of a new record, eliminating one common barrier to reporters seeking electronic records.

EFOIA required agencies to create “electronic reading rooms” and to have a FOI Act section on their Web sites. The legislation required agencies to post online copies and indices of frequently requested records, as well as administrative opinions, policy statements and staff manuals. The provision was to be met by Nov. 1, 1997, and the requirement applied only to records created on or after Nov. 1, 1996.

While EFOIA has made it clear that electronic records are covered by the federal records law, problems still exist with agencies’ EFOIA compliance.

Journalists told a House subcommittee in 2000 that agencies continued to delay requests and some failed to post frequently requested information on their Web sites.
An August 2001 report by the General Accounting Office, based primarily on federal agencies’ annual FOI Act reports, found that backlogs continue and agencies need to better provide online information.

The study found a growing backlog of unprocessed requests at most agencies, while the number of requests has held steady or declined for most agencies.
Although most agencies reported that they processed simple requests within the required 20 days, other agencies reported much higher processing times.

According to the GAO report, agencies are still inconsistent in how they report their annual FOI Act results from year to year, making it difficult to look at changes over time.

For the study, the GAO also interviewed FOI Act requesters and agency FOI Act staff to study the impact of September 11 on the FOI Act: “Agency officials characterized the effects on FOIA implementation as relatively minor. . . . In contrast, members of the requester community expressed general concern about information dissemination and access to government in light of removal of information from government Web sites after Sept. 11.”

The impact of September 11 on EFOIA, however, will become clearer when annual reports covering 2002 are released.

The report found that while agencies are making efforts to put information on their Web sites, improvements are still needed: “Agencies are not devoting sufficient attention to the on-line availability of materials and ensuring that Web site content is adequately maintained, including accuracy and currency of the material and Web site links.”

The Department of Justice, charged with FOI Act oversight, has made strides to implement earlier GAO recommendations outlined in a March 2001 report.

“FOIA makes government work better,” said Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, who along with Rep. Stephen Horn (R-Calif.) requested the report.

“In times of heightened security, the tendency to close doors and conduct the government’s business in secret is natural,” Leahy said in a Sept. 25, 2002 statement. “Secrecy can become addictive, and that is a danger we have to guard against. The nation needs a robust FOIA in times of peace, but also in times of war. The Freedom of Information Act is the people’s window on their government, showing where it is doing things right, but also where it can do better.”

Horn headed the Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations of the House Committee on Government Reform. Leahy and Horn were the chief authors of the EFOIA Amendments of 1996. GAO continues to examine the impact of these new FOI Act policies at Leahy’s request.