Congress 2005-06

In 2005-06, the 109th Congress examined FOIA problems and potential fixes.

U.S. House Hearing Focuses on FOIA Problems

The Freedom of Information Act has become "less reliable, less effective, and a less timely" tool, according to Tonda Rush, public policy director for the National Newspaper Association. Speaking on behalf of the Sunshine in Government Initiative, Rush told lawmakers that Congress should create an ombudsman to give the public an alternative to the courts to resolve disputes with federal agencies.

Ms. Rush told the House Government Reform Subcommittee on Government Management, Finance and Accountability that too often Congress itself writes laws exempting specific information, such as particular scientific research, from FOIA. Currently there are roughly 140 such laws putting information beyond the public's reach under FOIA.

Sen. Patrick Leahy told the committee that "the recent trend of creating exceptions is a mistake, especially when they are buried in legislation that we're not apt to see. That worries me. I mean, we should be doing just the opposite." Senators John Cornyn urged Rep. Platts, chairman of the Subcommittee on Government Management, Finance and Accountability, to create "meaningful consequences" for agencies that fail to comply with FOIA and meet deadlines.

• Testimony of Tonda Rush for the Sunshine in Government Initiative. Ms. Rush is public policy director for the National Newspaper Association.

• Government slower under open records law (AP, 7/26/06)

• Watchdog, lawmakers eye better information flow (GovExec.com, 7/26/06)

Also from SGI: Hill hearing to study problems, fixes to agency FOIA practices

The Freedom of Information Act at 40: Congress to examine reforms in hearing this week

July 24, 2006

After years witnessing an expansion of government secrecy in the nation’s capital and neglect of the Freedom of Information Act (FOIA), Congress and the executive branch are taking a closer look at FOIA on its 40th birthday.

In Congress, the House Government Reform Subcommittee on Government Management, Finance and Accountability scheduled a hearing on Wednesday, July 26, 2006, to assess how well the FOIA is working. The panel will hear testimony from congressional colleagues, the Justice Department, and FOIA users, including the Sunshine in Government Initiative. Agencies reviewed their FOIA activities in response to an executive order issued by President Bush in December 2005 and submitted Improvement Plans to the Justice Department last month. The FOIA was signed into law 40 years ago this month on July 4, 1966.

Background on FOIA: Government Falls Farther Behind

The government across the board is falling farther behind in responding to FOIA requests, according to a recent study by the Coalition of Journalists for open government. From 2004 to 2005, the backlog of requests grew, fewer requests were filled, requesters had to wait longer and the cost of each request grew. Despite these sobering findings, the government slashed investment in FOIA.

And the courts continue to be a stacked deck against the public. In 2005, the government won outright a majority of the time (56 percent) while the individual requester won in 1 in 30 cases (3 percent).

Congress Should Act to Require Agencies to Do More

Congress has stalled on passing the bipartisan “Openness Promotes Effectiveness in our National Government Act of 2005,” or OPEN Government Act (H.R. 867, S 394), which would make changes designed to help the public obtain documents from government. Most significantly, the bill would create a mediator who is independent of any federal agency to help resolve disputes. States such as New York, Florida, Virginia and many others have effective mediators that provide advice to the public and help settle disputes between state agencies and the public. The bill would also assign every request a tracking number, penalize agencies for delaying responses and make it easier for requesters to recover attorney fees for fighting improper agency denials.

Congress should not stop there. Too often secrecy provisions pass in the dead of night and create bad law. Congress should flag every bill that would close or open our government. Or leaders in Congress could ensure bills affecting the public’s right to know are reviewed by the committees with expertise in FOIA. Too many offices are understaffed or cannot afford efficient automated systems. Congress could invest adequate resources into agency efforts to disgorge documents. The current culture in Washington – written into policy by former Attorney General John Ashcroft ­– is to withhold documents whenever possible. Congress could give agencies incentives for doing a good job. Of the three branches of the federal government, FOIA applies only to the executive. Congress could apply the FOIA to Congress and the courts.

Nearly five years after September 11, now more than ever a free, informed public depends on strong laws, policies and practices promoting openness. In an environment of excessive secrecy in Washington, it’s heartening that some in Congress are paying attention to the Freedom of Information Act. Some change from Washington would be welcome.

Resources on the Web:

Subcommittee Hearing Announcement and Witness List:
http://reform.house.gov/GMFA/News/DocumentSingle.aspx?DocumentID=47546

Executive Order 13,392: Improving Agency Disclosure of Information (Dec. 14, 2005)
http://www.whitehouse.gov/news/releases/2005/12/20051214-4.html

Coalition of Journalists for Open Government report on FOIA:
www.cjog.net

National Security Archive: 40 Noteworthy News Headlines Made Possible by FOIA, 2004-2006
http://www.gwu.edu/~nsarchiv/nsa/foia/stories.htm

OpenTheGovernment.org coalition report on agency FOIA Improvement Plans:
www.OpenTheGovernment.org