Share

Watchdog: Accountability

Freedom of Information Act law 'terribly, terribly broken,' expert tells Senate panel

|
Congress,Watchdog,Senate Judiciary Committee,Accountability,Justice Department,Transparency,FOIA

Public frustration is growing over federal agencies' resistance to providing records under the Freedom of Information Act, according to journalists and open government advocates.

"We have a weaker FOIA law than Uganda, Kyrgyzstan, Mexico and Russia," said David Cuillier, president of the Society of Professional Journalists.

"FOIA is terribly, terribly broken. It needs more than just invigoration, it needs resuscitation,” he said in testimony Tuesday before the Senate Judiciary Committee.

Cuillier cited the World Press Freedom Index for 2014, in which the U.S. dropped 13 points, down to 46th place, behind countries such as Romania and Botswana. The index is prepared by Reporters Without Borders, a journalism advocacy group based in France.

Daniel Metcalfe, executive director of Collaboration on Government Secrecy at American University, told the committee that the openness-in-government community has been greatly disappointed by the Obama administration's implementation of the transparency law.

Sen. Chuck Grassley of Iowa, the ranking Republican member of the committee, said there is a "culture of obfuscation" among FOIA officials.

Committee Chairman Patrick Leahy, D-Vt., noted a marked increase in the use of Exemption 5 of the FOIA law.

Exemption 5 allows agencies to withhold information that is protected by a legal privilege, such as attorney-client privilege.

"In a 2013 secrecy report prepared by openthegovernment.org, federal agencies used FOIA Exemption 5 to withhold information from the public more than 79,000 times -- a 41 percent increase from the previous year," Leahy said.

Agencies are using FOIA as a tool of secrecy, not a tool of openness, Cuillier said.

“Exemption 5 needs a public-interest balancing test," said Amy Bennett, assistant director of openthegovernment.org.

"If the government were not convinced that the requested document would advance the public interest, a requester would still have the opportunity to ask a court to independently weigh the government's needs in invoking the privilege," she said.

Gavin Baker, policy analyst at the Center for Effective Government, said the implementation of a public interest balancing test to Exemption 5 would be a helpful step forward.

The FOIA Oversight and Implementation Act of 2013 would give the Office of Government Information Service more independence and empower it to recommend FOIA administration improvements to Congress. The bill passed the House in February and was referred to the Senate Judiciary Committee.

The OGIS was established to review agencies' policies, procedures and compliance and to provide mediation services to resolve FOIA disputes.

"We think that was one of the key provisions of that bill," Baker said.

Baker's group made public a FOIA scorecard earlier this week, in which seven of 15 major federal agencies received Fs.

The Justice Department, which oversees FOIA compliance in the executive branch, created guidelines in 2009 to help agencies reduce response backlogs.

"The attorney general's guidelines did not require implementing regulations. We have been working steadily and very aggressively since they were issued in 2009 to implement those guidelines not just at DOJ, but across the government," Melanie Pustay, director of the DOJ's Office of Information Policy, told the committee.

Pustay outlined five Obama administration initiatives she said were designed to modernize FOIA, including establishing an online FOIA portal, developing a common FOIA regulation that applies to all agencies, and introducing FOIA training resources for federal employees.

Agencies continue to improve their backlogs of FOIA requests, according to Pustay.

“Out of the 99 agencies subject to the FOIA, 73 reported having a backlog of a hundred requests or less, with 29 reporting no backlog at all,” Pustay said.

But DOJ's own backlog has been growing, creating a "do as I say, not as I do," situation for FOIA enforcement, Metcalfe told the panel.

Metcalfe was Pustay's predecessor as director of the DOJ office overseeing FOIA administration in the federal government.

“The awkward fact that the Department of Justice’s own FOIA backlog has been allowed to worsen over the past three years is bad enough for its own FOIA requesters, but when the lead government agency for the FOIA fails so badly to reduce its own backlog, it makes it much harder for it to press other agencies to dutifully comply,” he said.

View article comments Leave a comment