The Dayton Daily News, a Cox newspaper, used FOIA to pry open details about the deaths of young Peace Corps volunteers overseas two years ago. The award-winning series resulted in congressional hearings and prompted the organization to revise its policies on security
Open government advocates push for FOIA reform
By Rebecca Carr
The Pulse-Journal
Miami, Fla.
May 12, 2005
WASHINGTON - When public citizens request federal records under the Freedom of Information Act, they often face bureaucratic foot dragging, long delays and unwarranted denials, open government advocates said Wednesday.
In addition, there is no record of a federal employee being disciplined for failing to obey the law, advocates told the House Government Reform Committee's panel on accountability.
"Bureaucratic stultification accounts for most of the problems," said Mark Tapscott, director for media and public policy at the Heritage Foundation, a nonprofit think tank based in Washington. And while no one appears to have been held accountable for not responding to a FOIA request, "there are consequences but usually it's because they provide too much information," Tapscott said.
The law needs a major overhaul to foster public knowledge, civic participation and openness, said Jay Smith, president of Cox Newspapers and chairman of the Newspaper Association of America.
"There is a fixed culture within government that the information belongs to the agencies, not American citizens," said Smith in his written statement to the committee. "Some resist transparency at all costs, even though transparency in government will help it become more efficient and more accountable."
Former Attorney General John Ashcroft wrote a memo in the fall of 2001 suggesting that federal agencies should withhold information if they are uncertain about whether FOIA exemptions apply. Asked whether the memo affected requests for information, Smith said it had a very big impact.
"It's made it much, much easier for folks to say no," Smith said.
Carl Nichols, deputy assistant attorney general of the civil division, which advises federal agencies on the law, said that his department is committed to responding to requests in a timely fashion.
The problem, Nichols said, is a lack of resources to handle a tremendous growth in requests.
"The goal of achieving an informed citizenry is often counterpoised against other vital societal aims," said Nichols, citing national security, efficient government operations, prudent use of tax dollars and privacy concerns.
The government spends more than $300 million each year responding to requests, he said. Last year, the number of responses surpassed 4 million, most of them answered in full.
The number of requests has surged by 71 percent since 2002, according to an analysis by the U.S. Government Accountability Office released at the hearing. But the same study showed that the number of cases carried over from previous years grew by 14 percent last year.
The GAO report found significant differences in the way agencies respond to the FOIA. While 92 percent of the requests were filled last year, three agencies that handle complex and security-related issues - the State Department, the CIA and the National Science Foundation - turned over records for the full request less than 20 percent of the time.
The system is clearly flawed, Smith told lawmakers. Agencies do not have strong incentives to act on requests in a timely fashion or to avoid costly litigation with requesters, he said.
The lack of accountability leads to lost requests or an inability to track their progress, Smith said. Too often, officials lack the tools and resources to adequately respond to requests. In other cases, denials are simply unwarranted.
The consequence of lost or rejected requests is that the public remains in the dark. The law is crucial to citizens, companies and news organizations, he said.
For example, The Dayton Daily News, a Cox newspaper, used FOIA to pry open details about the deaths of young Peace Corps volunteers overseas two years ago. The award-winning series resulted in congressional hearings and prompted the organization to revise its policies on security.
And the Associated Press found that researchers at the National Institutes of Health were collecting royalties on drugs and devices tested on patients who did not know of the researchers' financial interest in the products. The practice ended after the story hit the wire.
Rep. Carolyn Maloney, D-N.Y., said the law needs to be revamped so that the public has an ombudsman to settle disputes over requested information and citizens can find out why so much of the requested information is blacked out.
"It's startling to me" that news organizations have trouble getting information out of the federal government, Maloney said. "You can imagine how hard it is for Joe Blow or Jane Blow."
Rep. Todd Russell Platts, R-Pa., chairman of the subcommittee, said the lack of consequences for failing to respond to FOIA requests is one of the most frustrating parts of his job as the chairman of the panel overseeing government accountability.
Legislation that would create a government ombudsman, tighten FOIA compliance deadlines and set up penalties for failing to adhere to the law was introduced by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt.
The legislation still has only a handful of supporters, according to Thomas, an online bill tracking system, but it is gaining widespread support among open government organizations.
"The legislation would restore meaningful deadlines for agency action and impose real consequences on federal agencies," Cornyn wrote in a statement to the committee.
