Agencies falter on FOIA

For all the talk of openness and forward-leaning innovation, it seems a majority of federal agencies are still behind the times regarding the Freedom of Information Act.

A governmentwide audit of 99 agencies conducted by the nonprofit watchdog organization National Security Archive reveals that a startling number of agencies have not followed directives issued by President Barack Obama and Attorney General Eric Holder to update FOIA regulations. Most have not heeded federal law either. The Open Government Act of 2007 called on agencies to make several FOIA regulation changes, but 56 agencies have failed to do so. One agency, the Federal Trade Commission, has not updated its FOIA regulation since 1975 — one year before Steve Jobs co-founded Apple Computer.

“This basically confirms what we were expecting,” said Nate Jones, the National Security Archive’s FOIA coordinator. “Government departments tend to love to toot their own horn saying they are doing a great job at being transparent, but as any frequent FOIA requester knows, that is not always the case.”

According to the report, 62 of 99 agencies heeded Holder’s 2009 memorandum to remove “unnecessary bureaucratic hurdles” in their FOIA processes, and just 49 agencies have acted on a transparency directive from Obama to “usher in a new era of open government.”

Further, the study reveals that 17 agencies still have not posted FOIA regulations — the rules FOIA officials rely on to make decisions — on their websites even though the Electronic FOIA Amendments of 1996 require them to do so.

Jones said his organization sent FOIA requests to those lagging agencies requesting copies of their FOIA regulations, but only seven responded within 90 days. Federal law requires that agencies respond within 20 days.

Joey Hutcherson, deputy director of open government at the Commerce Department, said his department made a conscious choice not to update its FOIA regulations while it and five other agencies focused on the October rollout of FOIAonline, a new shared-services model that allows the public to search through the FOIA inquiries of participating federal agencies by date, keyword and other parameters.

Commerce last updated its FOIA policies in 2006, Hutcherson said, and now “is in the process of reviewing regulations.”

Despite the National Security Archive’s often-scathing review of agency transparency, Hutcherson said it was an “honest report that raised some good points” for agencies that are lagging behind the transparency curve. Jones said he believes the Obama administration does want to improve the response to FOIA requests but is not doing enough to “force this behemoth of 99 agencies to really embrace these changes.”

He called for a FOIA watchdog to be installed within the government to provide transparency oversight. “A FOIA watchdog would know what agencies are doing, which are doing good or bad, and when agencies are putting good or bad regulations in place, and right now, I just don’t see that,” Jones said. “Agencies aren’t going to do it on their own. Obama has to have a point person in the office, someone whose job is caring about these issues.”

The Obama administration should use the problems identified in the report to push for change, said Tom Blanton, director of the National Security Archive.

"Outdated agency regulations really mean there's an opportunity here for a second-term Obama to standardize best practices and bring all the agencies up to his Day One openness pledge," Blanton said.

The report makes other recommendations to help spur FOIA regulations and transparency, including stopping the practice of “using fees to discourage [FOIA] requests” and reducing the use of withholdings and exemptions. It also calls on agencies to join the FOIAonline portal, described as a one-stop shop for requesting, tracking and posting digital versions of FOIA documents.

Hutcherson agreed that some agencies could benefit from joining FOIAonline, but added that many have their own systems in place.

“I don’t fault anyone for not going right away to FOIAonline, but what I would like to see is more agencies evaluate how it would fit into their processes,” Hutcherson said. “The interagency collaboration we can have now is just awesome with this tool. It really does help us share internally with other users of the system, and it speeds up that review of documents that may be sent out on referrals.”

Hutcherson was less enthusiastic about the suggestion of a FOIA watchdog in government, saying such entities already exist and there can be “too many cooks in the kitchen.”

“Everybody is resource constrained, and most people doing FOIA are ‘other duty as assigned,’” Hutcherson said. “Are we perfect? No. But we are trying to be better.”