In a recent Washington Examiner article, Executive Editor Mark Tapscott asked leading advocates for government transparency for their thoughts on what should be the government’s top transparency priorities for 2013. Cause of Action’s Executive Director Dan Epstein was featured as one of the “Nine people who know how to make government work better, more honestly.” Dan laid out five needed changes in the federal government that would yield greater accountability and transparency. One area he touched on is Freedom of Information Act (FOIA) requests. In addition to Dan’s suggestion of a “Uniform database of FOIA requests and processing, following current online tracking used by the Department of Labor and the FBI,” we want to offer some practical ways agencies can and should be improving their FOIA approach.
For those of us who believe in an honest, transparent government, 2012 was a disappointing year. In January 2009, President Obama submitted a memorandum for heads of Executive Branch agencies stating, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”
Despite the administration’s self-proclaimed commitment to openness, the responses to FOIA requests and lack of available data highlight a lack of follow-through from numerous agencies.
The Cato Institute graded the federal government’s data publication practices and found that, “the administration and the Congress both receive fairly low marks under systematic examination of their data publication practices.” On budgeting, appropriating and spending, eight out of 11 subjects received a D or F.
A Bloomberg investigation submitted FOIA requests to 57 agencies asking for travel records for Cabinet Secretaries and top officials in fiscal year 2011. Only 8 of the 57 agencies provided the documents within the 20-day period required by law and 7 provided the documents within 21 to 30 days. Almost half of the agencies did not provide documents at all by September 14, 2012 (the requests were sent in June of 2012). In a follow-up report in December of 2012, Bloomberg noted that 19 agencies still had not provided documents, including nine of 15 cabinet offices.
A staff report by the House Committee on Oversight and Government Reform examined the FOIA tracking systems for 180 government entities and gave cabinet agencies a C- grade and all 180 entities a B-. The report notes, however, that this only tests an agency’s ability to track its own FOIA requests and does not necessarily reflect its ability to respond to requests.
A FOIA Project study found that FOIA lawsuits have increased 28 percent during 2007-2008 and 2011-2012 from 562 to 720.
Here at Cause of Action, many of the FOIA requests we filed in 2012 hit unnecessary roadblocks including superfluous redactions, needless fees, and failure to meet time mandates required by the law. At one bureau, a whopping 30 percent of our requests have gone unfulfilled for more than 180 days, and at another our investigations team was halted when a FOIA officer went on vacation for 3 weeks without anyone to even answer our questions.
But now, it’s 2013. A new year has come, both in time and politics. This year, we have three New Year’s resolutions to suggest for the government.
- Increase efficiency in providing responsive documents to FOIA requests. Some of our requests have been open for more than 6 months with no production. At the very least, agencies should attempt to provide a timetable for when the documents can be produced.
- FOIA officers should improve communications with requesters by responding to email and phone calls in a timely manner. One agency could not give any information on one of our outstanding requests because the FOIA officer in charge of our request was out of town for almost three weeks. We could not get a status update or even an acknowledgement that they had our request. If the agency has a question regarding the FOIA request, it should not hesitate to contact the requester to resolve the issue. This will cut down on response times while also reducing appeals and lawsuits.
- President Obama and Attorney General Holder need to enforce the vision set out in their 2009 memorandums. Holder stated that agencies “should not withhold information simply because it may do so legally” and “whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure.” These promises have largely gone unfulfilled, and since there’s no better time than the present, 2013 would be a good time to start keeping them.
