Be careful what you wish for

From the Winter 2007 issue of The News Media & The Law, page 38.

With new faces still finding their way around Capitol Hill, a loud buzz is reverberating among the freedom of information community. For the first time in a long while, there is real hope that some of the damage done to open government in the name of national security, trade secrets and any of the other oft-used excuses for failing to release public documents, may finally have a chance of being repaired.

The various problems with the federal Freedom of Information Act, as well as proposed remedies, have all been bandied about as long as the act has been in existence.

For instance, in December 1987, Jane Kirtley, then-executive director of the Reporters Committee, testified at a hearing of the House subcommittee on government information to relay some of the problems encountered by reporters attempting to use the act 20 years ago. She said:

“Journalists plead to no avail for the quick decisions and prompt provision of information mandated by the act. They continue to face prohibitive costs and denials of public interest fee waivers despite the Congress’ efforts to remedy these problems. They encounter new procedural hurdles in the processing of their requests. And, ultimately, they face arbitrary denials, tedious appeals processes, and court battles. The failure of federal agencies to provide information increasingly affects the ability of reporters to cover government activities in an accurate and timely manner. “

Sound familiar?

There is, however, genuine optimism that the new Congress, working off the considerable blueprints of FOIA fixers Sen. Patrick Leahy (D-Vt.), Sen. John Cornyn (R-Texas) and Rep. Henry Waxman (D-Calif.), will push through some or maybe even all of the proposed changes so “transparency in government” begins to have some meaning.

Senators Leahy and Cornyn first introduced this “Openness Promotes Effectiveness in our National Government Act” in 2005. The OPEN Government Act, as it is more commonly known, finally made it out of the Senate Judiciary Committee with unanimous approval last September. But because this is a new Congress, the process must begin again from square one.

Fortunately, the House, especially under Waxman’s leadership as the new head of the Committee on Oversight and Government Reform, has been keen to keep the open government momentum going. Last year, Waxman added an initiative to the Senate version that revokes the infamous Ashcroft and Card FOIA memos and requires stronger agency reporting.

So now, while the paint in new offices is still drying and before the last of the nameplates arrives, is the time for open government advocates to figure out exactly what we want in the way of change to the federal FOIA.

Some parts of the current law jump out and beg for common-sense reform. For instance, a tracking system is needed so that requests can be followed from the time they are made to the time they are either denied or granted and filled. Also, protecting the fee status for news media requesters is a consensus point for which everyone is on board. But on other issues, agreement is harder to come by.

One word, I think more than any other, has been a lightning rod for spirited discussion among open government advocates when it comes to proposed FOIA reform. The idea already exists in the OPEN Government Act as last proposed. It’s a funny little word . . . Swedish in etymology, originally taken from Old Norse, according to Merriam-Webster’s online dictionary. It’s “ombudsman.”

On one hand, the idea of an ombudsman seems very appealing, especially for the news media. Right now, there is justified impatience with the FOIA process among journalists. With its built-in 20-day response deadlines (that’s 20 business days in between each level of bureaucracy, i.e. request plus 20 days, appeal 20 days, etc.), many journalists don’t have the time or the inclination to invest much in a FOIA request.

Also, if you are not backed by a mega-media conglomerate with in-house counsel at your disposal, you may fear the considerable costs of potentially protracted litigation. Smaller news organizations retaining private counsel and open government groups representing the interests of the general public naturally seek to avoid large bills from attorneys working on an FOIA lawsuit.

For these reasons, many groups want to see some step in the FOIA process short of filing a lawsuit in federal court that helps facilitate agency responses and leads to the release of rightfully public records.

The nightmare, though, is that FOIA advocates spur on the creation of a federal FOIA ombudsman and it backfires with dire consequences. A worst-case scenario would be an agency top-heavy with administrators that eats up millions of dollars, clogs up the system with procedural hassles, and undermines the powerful effect of litigation as a deterrent to an executive agency’s failure to follow the FOIA.

So is there a way to steer clear of creating another bloated federal bureaucracy that still gives FOIA requesters a legitimate alternative to litigation?

State action

The latest edition of the Reporters Committee’s Open Government Guide shows 15 state governments with some form of ombudsman, public records counselor or mediation program, designed to be the step that helps resolve records conflicts without ending up in a courtroom.

New York and Connecticut have successful public records commissions that have been in existence for a long time. New York’s Committee on Open Government has been around since 1974, and Connecticut’s Freedom of Information Commission started in 1975. These commissions are usually bipartisan and/or balanced with representatives from government and the general public ideally cooperating on behalf of open government.

The Connecticut and New York FOI committee structures depend on having full-time executive directors in place who have built considerable clout so that influence can be exhorted on agencies that fail to comply with disclosure laws. To his credit, New York Committee on Open Government Executive Director Robert Freeman is a state employee who simultaneously battles with other state agencies on behalf of open government. He consistently authors advisory opinions in favor of public records disclosure that carry immense weight and often resolve disputes on their own.

At the federal level, the chances of filling an executive position with someone as influential and yet as impervious to political pressure as Bob Freeman or Connecticut’s Colleen Murphy seems highly improbable, if not impossible.

Indiana and Illinois both have a public access counselor. In Illinois, the office is a branch of the attorney general. Illinois Attorney General Lisa Madigan has been such a fierce advocate of transparency and open government that her access counselor clearly has the authority and independence to challenge nonconforming state and local governments.

In Indiana, Public Access Counselor Karen Davis is a part of the governor’s cabinet. Existing outside of the attorney general’s office allows Davis the ability to pressure state agencies (as well as local governments) into compliance without fears of conflict of interest with an agency that the attorney general may go on to defend somewhere later on in the process.

But both these offices act in advisory capacities only, with small staffing and few resources. “We are here primarily to guide people on what access laws say in Indiana,” Davis said.

On a yearly basis, Davis gets between 230-250 formal complaints filed with her office. She writes opinions for all of the complaints that are not immediately resolved.

With millions of FOIA requests and thousands of appeals, not to mention hefty agency backlogs, Davis agrees that the lean and mean model of the public access counselor appears difficult to replicate nationally.

For years, Florida has had an alternative dispute resolution center based out of the Florida attorney general’s office to help mediate conflicts between requesters and governments. About 120 cases each year are processed by the Sunshine State’s open government mediation program.

Pat Gleason, who just this year moved to Florida’s newly created Office of Open Government, ran the Florida mediation program for more than a decade. She believes her state’s success is based on two main factors. First, agencies have their own attorneys (rather than drawing from the attorney general’s office), so litigation costs go directly back to agency budgets. Second, attorney fees are mandatory in Florida for prevailing plaintiffs in a public records lawsuit.

Gleason said the lack of consequences in the federal system would likely stall an ombudsman or a mediation program. “There’s no reason a federal agency would provide records just because an ombudsman tells them so,” Gleason said.

A cautious note

At the same 1987 congressional hearing in which the Reporters Committee highlighted the problems of FOIA which still ring true today, the Reporters Committee also voiced conditional support for the idea of a FOIA ombudsman.

That support came with these strong words of caution:

“[A]ny enabling legislation setting up an ombudsman agency must also make clear what such an agency must not do. It must not, for instance, identify and balance the interests of enforcing the act against the interests of not enforcing the act. That clearly is the responsibility of the Congress, not the executive branch. Furthermore the administrative procedures adopted by an ombudsman agency must not further encumber the FOI Act process, increasing the already formidable delays FOI requesters encounter. And lastly the ombudsman agency must exist in addition to, not in lieu of, a FOI Act requester’s entitlement to full judicial review.”

At the conclusion of the hearing 20 years ago, the House subcommittee on government information declined to introduce legislation establishing an FOIA ombudsman. The ombudsman idea was dropped, and FOIA reform didn’t come for another 10 years, until the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) was signed into law on Oct. 2, 1996.

Hopes are high that 2007 will be another landmark year in the history of FOIA. A new Congress with strong open government allies taking leadership positions could mean great improvements toward a more accessible and empowered democracy. A carefully planned, independent and objective ombudsman position coupled with penalties for government agencies that violate their statutory duties and easier access to attorney fees might be a desirable solution to the gridlock FOIA requesters currently face.

But in our excitement at the prospect of significant improvements to the FOIA, the toughest question may not be whether we can get an ombudsman proposal passed by Congress and signed into law, but whether we should want it in the first place.