Education Department gets an 'A' in FOIA

A transparency watchdog group ranking how agencies measure up on Freedom of Information Act requests has given four departments a failing grade -- and just one passed with flying colors.

Cause of Action, a citizen's advocacy organization promoting government transparency, examined how federal agencies respond to FOIA requests on promotional-items spending -- plaques, clothing and commemorative items. The research was conducted following the group's struggles with "superfluous redactions, needless rejections of our fee waivers, unresponsive FOIA officers, and a failure to meet time mandates required by law."

In total, 114 offices across 16 agencies received the same request. The watchdog then looked at and graded their response time, use of redactions, and approval of the Public-Interest Purpose fee waiver. The overall findings indicate the Obama administration "continue to fall short of a culture of transparency in the federal government," the report said.

For example, nearly 30 offices, did not respond to the FOIA request at all. Twenty-six took longer than 90 days to provide a response. On average, the 16 departments received a "C" grade in responding to the FOIA requests. Only one agency scored an A, while four received F's.

The Education Department fared the best on the FOIA task. The main office responded to the request in 27 days, and the Office of Inspector General sent a "no responsive documents" after 15 days. The fee waiver was approved, and no unnecessary redactions were made.

In contrast, the Commerce Department took 240 days to submit a response, but without the desired information. The agency's main office said it would start rolling production May 25, 2012, when it received responses from the other bureaus. After that, there has been only silence from the office.

The departments of Defense, Housing and Urban Development, Homeland Security, and Health and Human Services rounded out the "top 5" worst-performing agencies.

Making recommendations on improvements in the area of FOIA is difficult because all agencies have their own policies on transparency, said Dan Epstein, executive director of Cause of Action and a former counsel to the House Committee on Oversight and Government Reform.

"If you have an agency like the Department of Education, where the FOIA office is very much connected to the general counsel's office, you can have a general counsel who decides transparency is a big priority," he said. "In other agencies, there may be FOIA offices that are completely separate to the general counsel's or [inspector general's] offices, and it's really a question of having 300 request per month that can't be processed in a timely manner."

Epstein also took issue with the notion there is a "quick legislative fix" to the FOIA problem. Reps. Darrell Issa (R-Calif.) and Elijah Cummings (D-Md.) recently released a discussion draft aimed at reforming FOIA legislation. The bill would strengthen FOIA and push the government to operate with a presumption of openness. One provision would implement more oversight and review of compliance and grant the Office of Government Information Service, which should review fee assessments and waivers, more independence.

"One question we have to look at when it comes to what Reps. Issa and Cummings have proposed is whether that is going to fundamentally change how agencies charge fees, if all they're doing is producing documents online," Epstein said. "While groups like mine often have to do more with less, the federal government doesn't agree with that philosophy. If agencies get less money to do FOIA, it might actually have the pernicious consequence of agencies answering fewer requests."