WASHINGTON – On the Fourth of July, the Freedom of Information Act will mark its 39th birthday, just as a growing number of people think it’s time for a facelift.
Amid growing complaints about delays and difficulties in obtaining information from federal agencies, Congress is considering no fewer than six bills to give the act more teeth.
Over the years, the act, which underwent its last major overhaul 1996, has been credited with the release of a host of information.
A Government Accountability Office report released in May says such requests have led to disclosure of “waste, fraud, abuse and wrongdoing in the government, as well as the identification of unsafe consumer products, harmful drugs and serious health hazards.”
The report says agencies reported a 71 percent jump in FOIA requests from 2002 to 2004; a 68 percent rise in requests processed during that period; and a 14 percent rise in the backlog, which is to say, requests carried over from year to year.
The report, examining requests processed in 2004, says 92 percent of them resulted in “responsive records” being provided in full.
Rebecca Daugherty, a leading authority on the law, is with The Reporters Committee for the Freedom of the Press in Arlington, Va. She said that although the law requires agencies to indicate within 20 working days whether they will grant or deny the information, the deadline often is blown.
“There are horrible delays,” she said. “You have delays of up to 10 years. I hear all the time from reporters who just think it would be useless to file a FOIA request for information for a story that needs to be published right away.”
Daugherty, meantime, said she knows of no instance in which a federal employee was punished for failing to comply with the freedom of information law.
The committee has a Freedom of Information Service Center and a hotline to help journalists prepare requests and file appeals when they are given incomplete information – or none.
Not everything Uncle Sam has is up for grabs. The act has nine categories of data exempt from disclosure, including matters relating to national defense and foreign policy; certain law enforcement records; trade secrets; and personnel and medical files if disclosure would constitute an invasion of privacy.
Origins of the trend Daugherty and others believe that release of information under the information act has deteriorated and asking why results in finger-pointing. Some people blame the Sept. 11, 2001, terror attacks. Some point squarely at the Bush administration. Others date the trend to President Clinton’s tenure.
One observer, Mark Tapscott, traces the problem “back to Adam and Eve.” He directs the Heritage Foundation’s Center for Media and Public Policy.
“Every person on this Earth wants to look as good as possible,” said Tapscott, who supports a better FOIA law. “And governments, especially governments that have elections periodically, have a much more positive incentive for putting their best foot forward.”
The result? Government officials and appointees “have an interest in providing only part of the story,” Tapscott said.
Today, there’s a renewed focus on enhancing the Freedom of Information Act. Behind the push is a coalition including news organizations, librarians, government watchdog groups and public-interest organizations, some focused on civil rights or the environment.
Observers said the bid was being driven in part by a Senate partnership. They said a traditional advocate of government “sunshine laws,” Sen. Pat Leahy, D-Vt. – a former prosecutor and son of a printer – has found a Republican ally with the emergence of Sen. John Cornyn of Texas. He was Texas attorney general and a Texas Supreme Court justice, and, likewise, has long been a proponent of openness. Leahy entered the Senate in 1975, Cornyn in 2002.
Open government is fundamental to a healthy democracy, Cornyn said this year, when he and Leahy introduced the first of two measures to bolster FOIA.
Cornyn said transparency lets taxpayers see where their money is going, permits an honest exchange of information, ensures accountability and upholds an ideal “that government never rules without the consent of the governed.”
But he knows the frustration in getting the government to cough up information and tells a joke to make his point: A man files a FOIA request with the FBI, asking if they had a file on him. The FBI’s response is curt: “There is now.”
Leahy, for his part, has said that timely access to information is part of the system of checks and balances because sunshine “is a great disinfectant to abuses of power and wrongdoing.” He maintains that open government “is under assault,” in part because of what he calls a “dangerous trend”: the government’s expensive, growing habit of classifying millions of documents.
The pair has put together two bills. One modest bill would create a 16-member commission to identify methods to reduce delays in processing FOIA requests; it’s already won the approval of the Senate Judiciary Committee. A second, broader measure would establish a way for people to track their FOIA requests on the Internet and would establish an ombudsman to mediate FOIA disputes between agencies and requesters. The second bill’s stated aims are to strengthen the information act, close loopholes, help requesters obtain timely responses, ensure agencies have a strong incentive to act in a timely manner and give FOIA officials tools to ensure that the government “remains open and accessible.”
Sen. Russ Feingold, D-Wis., is a co-sponsor of the two bills along with a third. Feingold, in a statement, said that protecting people from terror attacks must be the top priority of government, but this can be done while “respecting civil liberties and the public’s right to know.”
He added: “Unfortunately, that has not been the prevailing attitude in the past four years. The administration has too often tried to operate behind a veil of secrecy, so it is all the more important to ensure that Americans can effectively use the Freedom of Information Act.”
House Democrat Ron Kind, D-Wis., like Leahy, is concerned about too much information being stamped “classified” and thus put out of FOIA’s reach.
“This administration has wrapped itself in secrecy,” Kind complained. “It’s dangerous for our democracy. This administration has been very shrewd in blocking sunshine from coming in.”
He backs efforts to beef up the information act but wants the issue of classification of documents considered simultaneously, as one House measure does.
Don Stewart, communications director for Cornyn, said he hopes the push for a tougher FOIA transcends party and ideology. “If anything, it should appeal to conservatives who are leery of big government and leery of Big Brother – and government acting without the consent of the governed. It’s a core principle of conservatives.”
F. James Sensenbrenner Jr., R-Wis., who leads the House Judiciary Committee, is withholding judgment for now. Because the reforms would be considered by his committee and bills often are altered there, the lawmaker “is reserving comment,” his press secretary, Raj Bharwani, said last week.
House Republican Mark Green of Wisconsin has co-sponsored the more modest FOIA bill while labeling himself “a strong proponent of making government information available.”
Rep. Brad Sherman, D-Calif., introduced that bill with Rep. Lamar Smith, R-Texas. Sherman, asked to gauge the measure’s chances, said that although it has bipartisan, bicameral support, it is neither “a slam dunk” nor “a shot from the back court.”
Another House Republican from Wisconsin, Paul Ryan, “has no particular leaning at this time” on the bills, said Kate Matus, his press secretary. “He is a big believer in openness in government but would need to hear from all sides about the specific proposals before weighing in.”
Feingold’s Senate colleague from Wisconsin, Democrat Herb Kohl, issued a statement indicating he’s inclined to get behind a tougher information act.
“Governments operate best when their activities are open and transparent to the public,” he said. “Strengthening the current FOIA laws to ensure greater access to information about how and why our government makes decisions can only help foster a better understanding among the public and improve the accountability of our public officials.”
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