Survey: Half of agencies abide by Obama FOIA policy

Kacey Deamer | Freedom of Information | Feature | March 14, 2011

A survey released this week found the "glass half full" in its audit of federal agencies' compliance with memorandums from the White House that called for more transparency.

The audit found that several agencies made significant changes in their Freedom of Information Act procedures, including a larger online presence and more timely responses to requests. Despite a few high notes, several agencies showed no change or simply failed to respond to the audit's FOIA requests.

President Barack Obama's "new era of open government" memorandum, issued on his first full day in office, requested federal agencies "adopt a presumption in favor of disclosure." A resulting 2010 memorandum from then-Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer further encouraged agencies to comply with Obama's request by presenting specific actions to take.

The survey research was conducted by the National Security Archive at The George Washington University and was financed with a grant from the Knight Foundation. The annual Knight Open Government Survey, which began in 2002, determines the level of open government through an audit of 90 federal agencies' response to the survey team's FOIA requests.

The survey team filed FOIA requests for documents pertaining to concrete changes in agencies' "FOIA regulations, manuals, training materials, or processing guidance as a result of the 'Day One' Obama administration memorandum" and the Emanuel-Bauer memo, the survey said. The Emanuel-Bauer memo instructs agencies to: "update all FOIA guidance and training materials to include to principles articulated in the President's Memorandum," and "assess whether you are devoting adequate resources to responding to FOIA requests promptly and cooperatively."

According to the results of the National Security Archive's FOIA requests, 49 agencies have taken action in response to the Emanuel-Bauer memo. However, only 13 of the 49 agencies have fulfilled both steps outlined in the memo. The survey highlighted the Department of the Interior as one such agency that has fulfilled both steps of the memo, noting that the department "began discussing how to improve their FOIA practices soon after Obama's memo."

Notably, the U.S. Postal Service responded that it had no record of ever receiving the Emanuel-Bauer memorandum. The postal service was joined by 16 other agencies that "could not provide concrete records showing that they had followed the memo's instructions," the survey found. Although the Postal Service denied receipt of the memo, it noted in its response to the FOIA request that they "have taken steps in the last two years to address the issues identified in the memo," though no documentation was provided to uphold its claim. The survey notes: "In the U.S. federal bureaucracy, if there is no paper trail, it is likely that nothing substantial happened."

FOIA requests were acknowledged, but never acted upon, by 17 agencies. Under law, a response is required within 20 business days. Yet, the survey noted that 117 business days had passed since the FOIA requests were submitted. Interestingly, agencies that were unable to provide evidence of compliance with the Emanuel-Bauer memo often cited attendance at Department of Justice FOIA training sessions. "Yet the Department of Justice has been unable so far to present these frequently mentioned materials . . . a telling commentary on Justice's ostensible leadership in this area," the survey said.

At the time the survey was complied, four agencies had still failed to acknowledge receipt of the FOIA request. This is a vast improvement from the 2010 survey, which placed 17 agencies in this category. Yet, "the failure of these agencies to respond within 117 business days raises serious concerns when the law requires a response within 20 business days," the survey noted.

One of the more interesting findings of the survey was that some FOIA requests, as old as 18 years, "still languish in the FOIA system." Of the agencies reviewed, 12 have "outstanding requests" that are older than six years. Ironically, the National Archives holds the record for the oldest unfulfilled FOIA request, which was submitted 18.67 years ago. The audit found that "marooned FOIA requests . . . remain a key obstacle to transparency."

"At this rate, the president's first term in office will be over by the time federal agencies do what he asked them to do on his first day in office," said Eric Newton, senior advisor to the president at the Knight Foundation. He noted the importance of freedom of information in society's ability to function. "Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws," Newton said.

The FOIA Coordinator for the National Security Archive, Nate Jones, said that there is hope for government transparency. "We are seeing improvements," he said, but the rate at which agencies are adopting the Emanual-Bauer memo is a serious concern. Jones noted that agencies take action more readily when there is pressure from higher administration. "agencies aren't doing it on their own," he said. Jones said that in order to ensure changes are being made toward transparency, Obama may need to twist some arms.

The National Security Archive recommends the White House issue a new memo from White House Chief of Staff William Daley and Bauer. This memo "should instruct agencies to: change their training manuals and guidance materials immediately to reflect the President's presumption for disclosure" and "create a high-level 'openness team' within each agency to address Freedom of Information performance together with the whole spectrum of the President's openness reforms," the survey said.