E-FOIA Noncompliance Demands Hill Mandate, Senate Judiciary Hears
Widespread agency confusion on what records can be released under Freedom of Information Act (FOIA) requests is partly to blame for delayed responses and noncompliance with the 1996 Internet update to FOIA, witnesses told a Senate Judiciary Committee hearing Wed. Patience for agency lagging has a price that Internet writers and ordinary citizens can’t afford, media representatives said, noting costs in the hundreds of thousands of dollars to sue for information. The Internet is the ideal medium for FOIA processing -- “if it is working,” Chmn. Leahy (D-Vt.) said.
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Leahy and Sen. Cornyn (R-Tex.) introduced their OPEN Govt. Act (S-849) Tues., intended to make such requests more affordable and easier to track, citing bloggers among beneficiaries (WID March 14 p2). Leahy said he has assurances from Senate leaders the bill will get floor consideration if it passes committee, as it did last Congress.
Some information has been posted on govt. websites for months before suddenly getting yanked and reclassified as immune to FOIA requests, Leahy said in opening remarks. “We need to recognize the transformation in both technology and information gathering” for citizens to quickly have access to public records, Cornyn said. He pointed to a blogger mentioned in The World Is Flat who posted a story after interviewing an official as he left a talk show set: “That individual needs to get access to information, too.”
Members and witnesses cited new research from the National Security Archive at George Washington U. that found low compliance with the Electronic FOIA (E-FOIA) amendments in 1996. That update required agency websites to offer opinions and orders, frequently requested records, agency policy statements and guidance to agency staff. Of 149 agency and “component” websites surveyed, only one in 5 posted all 4 categories, and 41% didn’t post even frequently requested records. Few agency sites (6%) offered enough guidance for users on filing FOIA requests, 26% offered a Web-based submission form, and 36% provided the required indexes and guides to agency records, the Archive survey said. Among the best agency sites: FTC, DoJ and Education Dept. The worst: DoD, the U.S. Trade Representative and the VA.
Though some states match the federal govt.’s E-FOIA failure, Tex. can set an example for the feds, said Katherine Cary, gen. counsel to the Tex. attorney general. The state requires public officials to watch a training video on its website and complete a FOIA certification, she said. But Sabina Haskell, editor of the Brattleboro Reformer, said her small Vt. paper spent $12,000 on one set of requested documents. “It’s like you're guilty until you're proven innocent,” she said: State-level FOIA change “has to come from the [federal government] -- everybody sees it being hidden from the top on down.”
Public officials have reasonable worries about releasing confidential information, which can bring criminal penalties, Cary said. “The human response is always to say ‘it’s closed,'” she said, and “malicious officials… are the clear minority.”
But costs for FOIA requests can quickly spiral out of the reach of ordinary citizens, who make up 1/3 of requests, AP Pres. Tom Curley said. The news organization has spent “well into the 6 figures” litigating for faster access and more records from the Guantanamo Bay court case, and has received only $11,000 in govt. refunds, he said. Alluding to UPS and the Internet tracking system for FOIA requests proposed in the Leahy-Cornyn bill, Curley said: “If Brown can do it, red, white and blue should do it too.” He suggested a creation of a federal ombudsman who could help requesters get information without going to court.