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Congress questions FOI Act enforcement

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   May 12, 2005

NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   May 12, 2005

Congress questions FOI Act enforcement

  • The Freedom of Information Act needs revamping to hasten response to records requests and punish delays in response time, open government experts told a House subcommittee Wednesday.

May 12, 2005  ·   Big backlogs in Freedom of Information Act requests and a lack of enforcement when agencies ignore or delay response to requests are among the problems a House panel heard about Wednesday at a hearing on the status of the FOI Act.

As the number of FOI Act requests received by agencies increased 71 percent from 2002 to 2004, the number of requests falling into backlog — carrying over from one year to the next — increased 14 percent, Linda Koontz, director of information management issues for the Government Accountability Office told the House Subcommittee on Government Management, Finance and Accountability.

Overall, 92 percent of FOI Act requesters got full responses, but in certain agencies such as State, the Central Intelligence Agency and the National Science Foundation, full response rates were closer to 20 percent, she said.

Subcommittee Chairman Rep. Todd Russell Platts (R-Pa.) said that “unprecedented capabilities to disseminate and collect information” coupled with threats to security and privacy require effective government information policy that balances security with access.

U.S. Archivist Allen Weinstein said FOI Act requesters sometimes experience enormous delays. His agency, the National Archives and Records Administration, is “reasonably successful” at meeting the FOI Act’s 20-day response deadline, but not when it comes to requests for classified information or information governed by the Presidential Records Act, he said. Those two types of records require external declassification review that puts NARA — and FOI Act requesters — at the mercy of other agencies whose backlogs can be lengthy, he said.

Several panelists repeatedly asked witness Carl Nichols, deputy assistant attorney general for the civil division of the Justice Department, what recourse records requesters have when they receive less-than-full response from federal agencies or when faced with the long delays described by Weinstein.

They can appeal to the agency and if not satisfied, can take disputes to court, Nichols said.

Reps. Carolyn B. Maloney (D-N.Y.) questioned the viability of those options for the average requester. First, most requesters don’t have the resources to go to court, and second, she doubted the neutrality of agencies reviewing their own redaction decisions. Mark Tapscott of the Heritage Foundation agreed, testifying that as a requester he “never won” administrative appeals.

The “absence of a neutral [federal level] arbiter with authority to mediate disputes between agencies and requesters and to oversee administration of the FOI Act” hinders the act’s effectiveness, Tapscott said.

Several FOI Act reform bills in Congress would revamp the act, including creating an ombudsman to mediate disputes between records holders and requesters.

Jay Smith, the president of Cox Newspapers, listed numerous examples of how the news media used the law to empower the public with information. For example, he said, The Associated Press recently used a records request to find “that researchers at the National Institutes of Health were collecting royalties on drugs and devices they were testing on patients who did not know about the agency’s financial interest in the products.” When the story hit the wire, he said, the practice ended.

Rep. Henry Waxman (D-Calif.) appeared with the panel to discuss some of the open government problems he unearthed in a report he published in November. He plans to reintroduce his “Restore Open Government Act” to address some of the problems including the proliferation of labels such as “Sensitive But Unclassified” and “For Official Use Only” that may keep information out of reach of the FOI Act even though the information the labels protect is not necessarily exempt from disclosure requirements.


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