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From The Coalition Column of the April 2010 issue of Perspectives on History

Status Reports on Transparency in the Federal Government

Lee White, April 2010

March 15–19, 2010, marked the sixth annual Sunshine Week here in Washington, D.C. Sunshine Week is a national initiative to have a recurring discussion about the importance of open government, transparency, and freedom of information. Participants include print, broadcast, and online news media; historians; civic groups; libraries; nonprofits; schools; and others interested in the public’s right to know.

To coincide with Sunshine Week, the National Security Archive at George Washington University released an audit of federal government agencies’ administration of the Freedom of Information Act (FOIA). The audit was the first performed by the National Security Archive since President Obama and Attorney General Eric Holder issued directives in 2009 to federal agencies mandating reform of the FOIA compliance process.

The audit found that while some progress had been made in increasing transparency, results across the federal government were decidedly mixed. For example, many ancient requests—some as old as 18 years—still persist in the FOIA system.

A minority of agencies have responded to the Obama and Holder Memos with concrete changes in their FOIA practices.

Only four out of 28 agencies reporting—including Holder’s own Justice Department—show releases up and denials down under the FOIA.

The audit, which is based on data obtained from government agencies through FOIA requests filed by the National Security Archive in September 2009, found that federal agencies had a wide range of responses to the Obama and Holder memorandums. Some agencies (13 out of 90) implemented concrete changes in practice as a result of the memos; some (14 out of 90) have made changes in staff training; and still others (11 out of 90) have merely circulated and discussed the memos. The remaining agencies (52) either told the National Security Archive that they have no records that demonstrate how they implemented the Obama and Holder memos or did not respond at all to the FOIA request.

The report also shows that several agencies have severe backlogs in processing FOIA requests, with some requests as old as 18 years. Presidential libraries are facing some of the greatest challenges processing old requests—the libraries for Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton all have requests pending from the first year they began accepting records requests from the public. For example, the estimated response time from the Reagan Presidential Library has grown from 18 months in May 2001 to 77 months in March 2007.

National Security Archive Director Tom Blanton said that the audit makes it clear that too many government agencies are falling short of the goals set out by President Obama. “It is time for a ‘No FOIA Request Left Behind’ initiative,” Blanton said.

The Associated Press (AP) also issued a report during Sunshine Week reviewing annual Freedom of Information Act reports filed by 17 agencies and found similar mixed results.

Among the AP’s findings:

The government’s use of nearly every one of nine major FOIA exemptions to withhold part or all the information sought in requests rose in fiscal 2009, President Barack Obama’s first fiscal year in office, compared with budget year 2008.

In all, the agencies reviewed by the AP processed 501,158 FOIA requests in the 2009 period, compared with 504,110 the previous year.

Much of the Obama administration’s early effort on FOIA seems to have been aimed at clearing out the backlog of old cases: The number of unfilled requests past the time limits spelled out in the open-records law fell from 124,019 in budget year 2008 to 67,764 at the end of the most recent budget year. There is no way to tell whether those whose old cases were closed ultimately received the information they wanted.

The agencies reviewed provided everything sought in FOIA requests in at least 162,205 cases last fiscal year, compared with 196,776 the previous year.

They denied FOIA requests in their entirety based on exemptions 20,005 times last fiscal year, compared with 21,057 times the previous year.

In the memorandum to the heads of executive branches and agencies on FOIA issued on January 21, 2009, President Obama directed the attorney general to issue new guidelines governing the FOIA reaffirming the commitment to accountability and transparency.

On March 19, 2009, Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines that directed all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The memo rescinded the guidelines issued on Oct. 12, 2001, by then Attorney General John Ashcroft.

The new FOIA guidelines addressed both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the attorney general directed agencies not to withhold records simply because they could technically do so. In his memo, Holder encouraged agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

Attorney General Holder also established a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department of Justice defends a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rescinded rules, the department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold.

On March 15, Senator Patrick Leahy (D-VT) introduced legislation (S. 3111) to make further improvements to the FOIA. Leahy partnered with Senator John Cornyn (R-TX) to author the Faster FOIA Act, which will establish an advisory panel to examine agency backlogs in processing FOIA requests. Under the legislation, the panel, named the Commission on Freedom of Information Act Processing Delays, will be required to provide to Congress recommendations for legislative and administrative action to enhance agency responses to FOIA requests. The panel will be required to identify methods to reduce delays in the processing of FOIA requests, and will be charged with examining whether the system for charging fees and granting fee waivers under FOIA should be reformed in order to reduce delays in processing fee requests.

The National Coalition for History joined numerous groups in a letter endorsing passage of the Faster FOIA Act.

Lee White is the executive director of the National Coalition for History. He expresses his gratitude to the National Security Archive and the Associated Press, on whose reports he has heavily relied for writing this article. He can be reached at lwhite@nationalhistorycoalition.org.