Promises of ‘EFOIA’ unrealized, subcommittee told

WASHINGTON, D.C.–The Electronic Freedom of Information Act of 1996 holds unrealized promise for journalists, Jane E. Kirtley, executive director of the Reporters Committee for Freedom of the Press, told a House subcommittee hearing concerning federal agency compliance with that Act in early June.

Testifying on a public interest panel before the House Committee on Government Operations’ subcommittee on government management, information and technology, Kirtley said the act has provoked real and positive changes. It makes clear that electronic records are subject to the FOI Act. Agencies now conduct electronic searches for FOI responses. Requesters may now choose to receive either a paper or electronic format if that choice can be supplied reasonably. Journalists no longer have to settle for 80-pound printouts, she noted.

However, Kirtley said reporters are disappointed that agencies have been slow to implement EFOIA requirements for electronic reading rooms, and for expedited review of urgent requests.

The Reporters Committee’s greatest disappointment with the Act, she said, has been the refusal of the Executive and Judicial Branches to honor the Act’s first finding, that the FOI Act is meant to serve “any purpose.”

She pointed out that the legislative history to EFOIA spells out that this finding is meant to correct the Supreme Court’s misinterpretation of Congress’ intent in 1989 in Department of Justice v. Reporters Committee. The court there said the only purpose of the FOI act is to shed light on the activities of government, and that a balancing test of privacy and public interests will tip in favor of privacy unless the records directly reveal government activities.

Patrice McDermott, information policy analyst for OMB Watch, testified about the dearth of information in agency Websites which EFOIA required be fully developed by November 1997. As of January no agency had fully complied, she reported.

Public Citizen attorney Michael Tankersley testified that Office of Management and Budget had not provided necessary leadership to implement the law; that reference materials and indexing materials are missing from electronic reading rooms and that agencies have resisted electronic disclosure.

James Riccio of the Public Citizen’s Critical Mass Energy Project noted faster, better and more useful access to records of the Nuclear Regulatory Commission at both national and local levels, as a direct result of the EFOIA. However, Riccio urged the government not to destroy paper libraries and files as they convert much of their information to electronic format.

The subcommittee also heard a panel of government FOI officers, most of whom admitted that their executive branch agencies have failed to fully comply with the EFOIA requirements. However, Patricia Riep- Dice, the FOI officer for NASA, reported that her agency has fully implemented EFOIA and began accepting FOI Act requests by e-mail in May 1997. “While this is not a requirement of the EFOIA, we believe it facilitates public access,” she testified. (Hearing before Committee on Government Reform and Oversight’s Subcommittee on Government Management, Information and Technology, June 9)