Journalists tell Congress E-FOIA compliance has been inadequate

From the Summer 2000 issue of The News Media & The Law, page 24.

A mid-June Congressional hearing explored federal agencies’ compliance with the Electronic Freedom of Information Act.

Public interest groups and members of the media testified that compliance has been inadequate, and urged a subcommittee of the House Government Reform Committee to ensure that agencies meet the high standards established by the law.

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Complaints about agency compliance with the Electronic Freedom of Information Act of 1996 prompted Rep. Stephen Horn (R-Calif.) to call a hearing in mid-June. Horn, who chairs the House Government Reform Committee’s subcommittee on Government Management, Information and Technology, invited government, media and public interest testimony on how the act is working and where it fails to work.

Horn has also asked the Government Accounting Office to review agency compliance with the act.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, and Ian Marquand, Freedom of Information chairman for the Society of Professional Journalists, spoke on behalf of journalists. Patrice McDermott, policy analyst for OMB Watch, sat on a panel with them and presented results of her organization’s intensive analysis of agency adherence to the act and its findings that agency compliance is “overwhelmingly inadequate.”

Dalglish told the subcommittee that whatever the shortcomings of agency compliance, reporters are grateful for EFOIA, which has forced agencies to post information electronically. “We remember when there were no Web sites to visit,” she said.

However, she said, the act was also intended to address the most serious obstacles preventing successful uses of the FOI Act — lengthy delays and the overbroad interpretation of the privacy exemptions (6 and 7c), which shut down information if it involves a personally identifiable individual. The act has failed to help either problem, she said.

“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,” according to her testimony.

She recounted how former hostage Terry Anderson had been told he could not have information about his kidnappers without their written consent because it would violate their privacy, and how, even after the Department of State dropped that exemption, it had kept the information classified.

She also told how Jack McNamara, editor of a newsletter and online news service in Texas called the Nimby News, 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. The government contended the release would violate the sheriff’s privacy, and a federal District Court upheld that decision.

Horn said, “Yes, well, somebody should have gone in, some spirited agency, and made a case of that. That’s so stupid.”

Horn said he recalled that when he was president of California State University at Long Beach, the U.S. Department of Education had told both his university and Pennsylvania State University that without a release from the author they could not allow the public to look at masters theses or doctoral dissertations because the author’s privacy might be violated.

“And that’s the dumbest thing I’ve ever heard,” he said, “because in the whole history of higher education, the whole purpose of a thesis is to do original research, to have it available for professors, for the public, for students, for whomever.”

“And when I wrote the secretary a rather hot letter,” he said, “I got sort of a bureaucratic response from, I know, the same guy that did the stupidity.” Horn pointed out that there have been a number of well-known figures who have plagiarized their dissertations or theses. If students know the papers will be locked up forever “that’s just wrong,” he said.

Dalglish noted ways reporters need agencies to improve their web sites. Reporters need to be able to get behind the data, she said. They need data presented so they can extract information from it. They can’t “crunch” data from web sites that offer only PDF files. They find it difficult to extract information about their own communities from data presented as an aggregate, she said.

Marquand, who holds his office in SPJ while working as a special projects coordinator for the Montana Television Network, said the Internet should make time delays less of an issue and does so. The Internet makes it possible to check safety records of Montana railroads, to identify Environmental Protection Agency Superfund cleanup sites near the city and federal campaign contribution records through the Federal Election Commission.

But Marquand cited complaints from journalists around the country that agencies are not posting frequently requested information as the act requires them to do.

He also noted how the ongoing problems of delays cripple the usefulness of the FOI Act for journalists, many of whom will not use the act.

Citing a poll of journalists, Marquand said journalists had praised web sites of the Census Bureau, the Centers for Disease Control, the Federal Aviation Administration, the National Transportation Safety Board and the Nuclear Regulatory Commission.

But the Bureau of Labor Statistics, the FBI and the Department of State drew bad reviews, he said.

Marquand asked the subcommittee to use its authority to ensure that agencies meet the high standards of openness laid out by Congress.

McDermott cited the results of a study of 64 agencies by OMB Watch in late 1999 showing that by late November no agency had fully complied with the EFOIA, that Congress had not provided necessary funding to implement the amendments, that the Office of Management and Budget had not provided adequate guidance to agencies, that the Department of Justice had not given agencies sufficient encouragement to comply and that the agencies themselves have yet to make public access to government information, especially for accountability, a priority.

Leading off a panel of government spokesmen, Joshua Gotbaum, an executive associate director at OMB, said that the administration is working hard to provide information on line — to decrease reliance on individual FOI Act requests by increasing citizen access to more efficient and useful information venues.

Two major challenges the administration faces are improving management of information in electronic format and making information sharing easier, he said.

There is more work to be done and more progress to be made, Ethan Posner, a Department of Justice deputy associate attorney general, told the subcommittee. But he said that the Department of Justice had taken numerous steps to implement EFOIA, including educating other agencies about its requirements, issuing recommendations both for electronic reading rooms and FOIA web sites, and holding a conference for FOI officers and the information resource managers with whom they work on the requirements of the act.

Henry McIntyre, director of the Defense Department’s Directorate for Freedom of Information and Security Review in Washington, D.C., said his agency had also given widespread training within Department of Defense agencies seeking such training. He suggested that the department would need additional resources to establish and maintain the services required to implement EFOIA. But he said he anticipates that postings will become more user friendly as DOD components continue to revise and improve their web sites.