July 24, 2006

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

Editorials or news coverage of the hearing will help ensure the public and members of Congress understand the importance of open government, in particular the Freedom of Information Act.

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

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For more information, contact Rick Blum, Sunshine in Government Initiative coordinator, at (703) 807-2100 or rblum@sunshineingovernment.org, or visit: www.SunshineInGovernment.org