Reforming FOIA
The White House appears to be taking steps to improve the Freedom of Information Act, but supporters pressing for reform say it’s not enough.
From the Winter 2006 issue of The News Media & The Law, page 19.
By Corinna Zarek
President Bush’s Dec. 14 executive order mandating that federal agencies make the Freedom of Information Act request process more user-friendly may be a good first step, but it does not negate the need for Congress to reform the law, say some FOIA advocates.
White House Executive Order 13392 — Improving Agency Disclosure of Information — outlines steps each federal agency must take with respect to FOIA processing, including designating a chief FOIA officer responsible for reviewing the agency’s FOIA operations and writing an improvement plan to be posted to the agency’s Web site and sent to the Department of Justice by June 14. The order also requires each agency to establish a requester service center and designate a public liaison.
While the order is good news to supporters of government transparency, it “falls short on so many levels” when compared with the OPEN Government Act of 2005, FOIA reform legislation pending in the Senate, said Rishi Hingoraney, the director of government relations for the National Newspaper Association.
“The order does not address the vast majority of the provisions in the legislation. There is no congressional oversight, no penalties and no enforcement. The document has no teeth in it. This is a great first step, but we should move forward with the legislation,” said Hingoraney, who compared the two measures for the Sunshine in Government Initiative, a coalition of media organizations dedicated to maintaining open access to government.
Ordering change
Federal agencies are already working to implement the measures set forth in the executive order and a subsequent memo describing it more in depth, said Daniel J. Metcalfe, director of the Office of Information and Privacy in the Department of Justice.
“I think the very steps that agencies will have to take between now and June 14 are bound to have positive effects just by virtue of their implementation of the chief FOIA officer positions, their creating the service centers and establishing the liaison positions and their going through the examination and planning stages,” Metcalfe said. “That alone should have a positive effect, but the greater positive effect should occur when the agencies implement their plans.”
But the improvements will not necessarily make FOIA more effective, Hingoraney said.
“It’s good news in the sense that it shows that our efforts and efforts on the Hill have caused the executive branch and the president to take notice of FOIA and to take notice of problems with FOIA,” he said.
“Some things in the order are positive — the creation of requester center, the appointment of the chief officer, making the process more requester-friendly,” he said. “But it’s not the meaningful reform we’re looking for.”
FOIA reform is necessary and should come from Congress, agreed Rick Blum, the director of the Freedom of Information Project for OMB Watch, a research and advocacy group that promotes government accountability.
“FOIA — the law itself — is very good at providing the strong statement that the public deserves information if it is held by government. It is very good at providing protections for information that should be withheld,” Blum said. “What it does not do is put agencies’ feet to the fire to ensure the public does get what it needs in a timely way. Without additional resources or a real mandate for specific change, not much is going to happen.”
While no additional resources were allocated to agencies under the order, Metcalfe said the increased visibility provided to FOIA itself may influence allocation of existing resources within the agencies.
“Increased FOIA visibility means that there is a greater likelihood that when the time comes for allocating resources in one direction or another within an agency, the area of FOIA administration will be more competitive for those resources,” he said.
Legislating reform
The OPEN Government Act, introduced by Sen. John Cornyn (R-Tex.) and Sen. Patrick Leahy (D-Vt.), would go beyond the executive order, addressing several areas in which FOIA has fallen short for requesters, such as attorney’s fees, excessive delays and alternatives to litigation.
The executive order’s biggest shortfall is its failure to address time limits on fulfilling requests, Hingoraney said. “The majority of the order deals with reporting and requiring the new chief FOIA officers to go through their agencies and try to identify problems and set milestones, but there are no concrete penalties or any way of enforcing the biggest problem with FOIA — time lags with requests.”
The legislation would create an independent government office dedicated solely to FOIA and its requests. The Office of Government Information Services would serve as an ombudsman to all agencies, providing unsuccessful requesters with an alternative to costly litigation against the government. This would solve the problem of inconsistency among the agencies, Hingoraney said. Currently, each agency determines its own practices for handling requests and each varies according to individual agencies.
The open government legislation also addresses a loophole that has made it more difficult for requesters who successfully litigate under FOIA to recover attorney’s fees. These issues, among others presented in the OPEN Government Act, show that “the legislation is a far superior and more effective way of fixing FOIA,” Hingoraney said.
Blum agreed, noting instances of agencies’ refusals to release records short of a lawsuit, or their imposition of extensive fees to curb requesters’ receipt of documents.
“Those games have to stop. Congress needs to understand these very serious problems and find ways to deal with them,” he said. “It may be the OPEN Government Act or other legislation, but I don’t think Congress is out of the woods in needing to deal with this.”
Buying time?
With reports on the executive order’s progress not becoming available until October, it “absolutely” buys time for delay with the pending legislation, Hingoraney said. “It’s tempting for a lot of people on the Hill to say ‘wait until the reports come out and then see what to do’ about the legislation.”
SGI’s goal is to “contrast the order and the OPEN Government Act and show that the order falls short no matter what they report and no matter how things work out with the milestones,” he said. Hearings on the legislation, which is in the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology and Homeland Security, were held in March 2005.
As the only recent action toward improving FOIA, the executive order stands as the current vehicle for change.
“Everyone can expect federal agencies to be focused most heavily on implementing the executive order during the coming weeks and months,” Metcalfe said. “What might happen in the future remains to be seen, but for now the focus will be on doing a good job with this order and assessing the improvements made.”
It will take time to see whether the executive order will have an effect on FOIA, Blum said, adding that the order “doesn’t promise a lot” in the way of meaningful reform. “I would be surprised if we see a lot of change in a year. I hope this doesn’t undercut Congress’ sense that we need fundamental reform of FOIA.”
For Congress to adopt a wait-and-see approach would be to “drastically overestimate the impact that this executive order could have,” Blum said. “The message to Congress should be that there are very serious problems with the way that FOIA is implemented.”