Testimony on the status of federal agency compliance with the Electronic Freedom of Information Act of 1996 June 14, 2000 Mr. Chairman, members of the Subcommittee, thank you for the opportunity to present our views on the status of federal agency compliance with the Electronic Freedom of Information Act of 1996. My name is Lucy Dalglish and I'm the executive director of the Reporters Committee for Freedom of the Press. With me is Rebecca Daugherty, director of our FOI Service Center. The Reporters Committee for 30 years helped reporters who encounter legal difficulties in gathering and covering the news. We run a hotline for reporters who face all manner of legal obstacles in their quest to gather news, and by far the greatest number of questions on our hotline concern the inability of reporters to gain access to agency records. When the government fails to meet its Freedom of Information requirements, reporters are greatly inhibited in their ability to report the news to the public. We believe that Congress was forward thinking and insightful in its passage of the EFOIA, an Act that has greatly enhanced the public's ability to gain access to government information. Almost every agency now has a Web site that can be visited by the public. Agency Freedom of Information officers have worked hard to identify databases that would be useful to the public and to make them available on-line. Reporters routinely visit Web sites rather than contact agencies to get much of the information that they need for the stories they write. Reporters we talked to said also that government Web sites are getting more and more sophisticated and, as a result, easier to use and more useful. The testimony that we give today is meant in no way to disparage this enormously beneficial law that came into being largely because this subcommittee secured its safe passage through the House of Representatives. Please do not construe our remarks on implementation of this law as ingratitude. We remember when there were no Web sites to visit. The authors of this Act intended not only to add requirements for providing information electronically, but also to overcome the most serious obstacles preventing the public's successful enjoyment of a federal FOI program. Those are 1) the lengthy delays; and 2) the overbroad interpretation of the privacy exemptions (Exemptions 6 and 7c), which have come to represent a virtual shutout of information if it involves a personally identifiable individual. I. Delays Many reporters will not use the FOI Act claiming that they cannot get information in time for it to be useful. This is unfortunate. If reporters who cover the federal government must rely only upon the recollections of government officials - or upon leaks of information -- and not on government records, they cannot adequately report the news to the public. Multi-track processing and expedited review are sensible provisions and may be effective. We do know that reporters have sometimes qualified for expedited review of their requests when timeliness was very important in getting stories to the public.. But what was intended to be a major tradeoff - giving agencies lengthier deadlines for processing requests but eliminating their ability to routinely invoke "exceptional circumstances" to excuse delays -- seems simply to have been ignored by agencies. II. Privacy The first finding in the EFOIA is that the FOI Act is intended to establish and enable enforcement of the right of any person to obtain access to government records, subject to the exemptions, for "any public or private purpose." This finding was intended to limit the government's unfettered use of the FOI Act's privacy exemptions to categorically protect information concerning named individuals. Legal privacy protection has always involved a balance between the intrusion on personal privacy and the public's interest in disclosure and agencies had considered that balance in determining whether to invoke privacy exemptions. The scale was thrown out of balance by a 1989 U.S. Supreme Court decision that said that the only public interest that could be considered was the FOI Act's "core purpose," which it said was to reveal the "operations and activities" of government. Department of Justice v. Reporters Committee, 489 U.S. 749 (1989). The legislative history to the FOI Act states that the finding that access is to be for a"any public or private purpose" is intended to clear up the misconception of the Congressional purpose behind enactment of the FOI Act. In fact, Representative John Moss, who pushed early and hard for enactment of the FOI Act, was prompted to do so in frustration over his own inability to get government information on the performance of certain postal employees. He would not be able to get that information today. Former hostage Terry Anderson was told he could not have information about his kidnappers without their written release because it would violate their privacy. (The privacy exemption claim was dropped after media exposure, and the information is now withheld as classified.) Nimby News (Texas) editor Jack McNamara could get no information on the former local sheriff who pled guilty after federal law enforcement agents seized his horse trailer containing 2,500 pounds of cocaine because disclosure would have intruded upon the errant sheriff's privacy. (McNamara v. Department of Justice, 974 F. Supp. 946 (W.D. Tex. 1997). In our view, if the public cannot learn about the individuals affected by or connected to government, it can know very little about government. II. Electronic Information We heard repeatedly from reporters that the value of agency databases varies widely, that some agencies are likely to use the sites to promote themselves and explain their missions -- which is useful to the public in some senses -- but that real data collected by the government that could be useful to reporters studying many issues is often not available. The scientific agencies received the most complimentary endorsements. There were many favorable comments about the data available and searchable from the Environmental Protection Agency, NASA and NOAA. The Department of Transportation was often praised for its Web sites and for the accessibility of its data. One reporter told us that the National Park Service actually consulted persons likely to use its Web sites when it constructed them. The public needs to be able to find databases and that need to find databases indexed well enough to be researched. Reporters need to be able to talk to the people behind the data -- sometimes a simple question to an agency official will mean the difference between correct and incorrect interpretation, and yet agencies are structured to keep most agency personnel away from contact with the public. If only the public information officer or the Freedom of Information Act officer can talk to a reporter, data interpretation may never occur. Reporters need to use national government data for local stories, showing how their communities are doing. We heard repeatedly from reporters that government information in PDF format that precludes further study and use of the data is largely useless for these purposes. For instance, the Department of Justice has Uniform Crime Statistics and could make raw data available. Instead, it is presented in a PDF file and is largely useless to others who could "crunch" data to describe how crime in their own communities compares to crime elsewhere. Similarly, from the Internal Revenue Service, a reporter cannot learn from posted information how much money a county gives to the federal government and how much it receives. We were told that military agencies have databases that are easy to find and are well-organized but that it is difficult to draw out data for individual cities. There were complaints that agencies such as the Small Business Administration possess data on loans in local communities but that data does not appear on a Web site. There also were complaints that the requirements to post frequently requested data are not met, and there was a suggestion that "frequently requested data" should be interpreted to encourage posting of data that is requested frequently for specific localities. For instance, if records are requested for Tuscaloosa, then Tacoma, then Texarkana, an agency can infer that local communities may have an interest in seeing the data even though each community, singly, may have only one request for the data. Overall, reporters believed that the more information the agency is willing to make available, the more useful the agency site, particularly if the information is indexed and readily available. We greatly appreciate the opportunity to present these views. Ms. Daugherty and I would be happy to answer your questions.