Critics say Freedom of Information Act needs reform

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Critics say Freedom of Information Act needs reform As federal law turns 40 this year, federal agencies seem increasingly reluctant to make their records public.

By Rebecca Carr
Monday, March 13, 2006

WASHINGTON -- As a young graduate student studying international relations, William Aceves decided to take advantage of a law that gives citizens greater access to federal government records.

Seventeen years later, Aceves is still waiting for the records he sought under the Freedom of Information Act about a defense program that monitors international waterways.

Aceves, now 41 and a professor at California Western School of Law in San Diego, has received periodic bursts of information over the years but nothing comprehensive. The most recent batch of documents arrived in June with nearly a quarter of the 50 pages blacked out.

"It certainly is troubling that it has taken government agencies so long to comply," Aceves said. "Is it really accurate to call it the Freedom of Information Act if it takes more than a decade to disseminate?"

As the Freedom of Information Act turns 40 this year, federal agencies today seem just as reluctant to turn over information as they were when President Lyndon Johnson grudgingly signed the legislation on July 4, 1966.

The Freedom of Information Act established a legal right of access to government records and information. The law includes nine statutory exemptions for things like private medical records or information affecting national security. It also exempts the White House, Congress and federal courts from scrutiny. The Justice Department, which oversees the act, says it is working.

But the law, known as FOIA, is plagued by chronic backlogs, unjustified rejections and inconsistent responses, according to interviews with open government advocates and lawmakers and a new study by the National Security Archive, an independent research institute at George Washington University.

In a report to be published today, the National Security Archive conducted an audit of how well federal agencies process FOIA requests. The findings show that agencies have "significant backlogs and continue to fail at accurately identifying their pending FOIA requests." Some requests are processed within the time limit, but others are left to languish for years.

"What is missing in Washington is an awareness of the government's responsibility to inform the public," Sen. John Cornyn, R-Texas said.

Cornyn introduced legislation last year with Sen. Patrick Leahy, D-Vt., to strengthen the act in part by creating an FOIA ombudsman, establishing a hot line for complaints and imposing consequences for failing to release information in a timely manner.

So far, the Cornyn-Leahy proposal has failed to gain traction in either chamber of Congress.

"We've been treated more or less like running into a buzz saw here in Washington because it is so contrary to the current culture," Cornyn said. "I do think it's going to require cultural change to one of openness rather than let's hide the ball."

Cornyn and Leahy's legislation lost momentum in part because President Bush issued an executive order in December that directed agencies to designate a senior public official -- at the assistant secretary level -- to preside over FOIA requests and come up with a plan to hasten the release of records and reduce chronic backlogs.

Critics say Bush's order doesn't go as far as the Cornyn-Leahy measure, but it prompted lawmakers ambivalent about the legislation to question why they needed to amend the act if the president's order is intended to do the same thing. In interviews, Cornyn and Leahy said the president's order is a first step, but they plan to keep pushing their legislation.

"The president's executive order is not everything that I wanted, nor is it what I still want," Cornyn said.

Jump in requests

Federal agencies received more than 4 million requests for information in the fiscal year 2004. That is a 71 percent increase from 2002, according to a study by the Government Accountability Office on the legislation's effectiveness. Agencies reported that they fully responded to 92 percent of the requests they received in 2004. About half of all FOIA requests are from individuals seeking information about veterans records or Social Security benefits.

The public is more interested than ever in asserting its right to know, said Daniel Metcalfe, director of the Justice Department's Office of Information and Privacy.

"You don't wonder why we have had a Freedom of Information Act for 40 years; you wonder how we got along without it for nearly 200 years," Metcalfe said. "It is so important toward fulfilling the promise of democracy in a citizen-participating government."

But critics assert that the use of the statutory exemptions is on the rise and has resulted in more "partial denials." They say less information is being released than before. The GAO report confirms that backlogs are a problem, finding that the number of pending requests carried from year to year has increased 14 percent since 2002.

Metcalfe points out that some government information has greater sensitivity today than it did before the Sept. 11, 2001, terrorist attacks.

Top Democrats worry that the act is diminishing in value at a time when the federal government's penchant for secrecy is rising. In the past three months, the public has learned that the president authorized the National Security Agency to secretly eavesdrop on telephone calls of suspected terrorists four years ago without obtaining a warrant from the Foreign Intelligence Surveillance Court, as required by law. In addition, government intelligence officials engaged in a secret reclassification program to remove 55,000 pages of historical documents from the open shelves of the National Archives.

"The Freedom of Information Act needs to be strengthened because it cannot stand up to an administration that wants to aggressively hide its mistakes," Leahy said.

Success stories

A major reason cited for the act's decline is the lack of consequences for public officials who flout the law. No penalties are assessed if a public official fails to comply within 20 working days after receiving a request. Citizens may appeal, but ultimately they have little recourse other than to sue.

"There is no cop on the beat," said Rick Blum, executive director of OpenTheGovern-, an umbrella organization of liberal and conservative groups concerned about government secrecy. "In Washington, it is easy to get away with denying and delaying until a request dies."

Taking the federal government to court has resulted in a recent string of successes for the media and other advocates of open government.

For example, as a result of The Associated Press filing an FOIA lawsuit, a federal judge this month ordered the Pentagon to release the identities of suspected terrorists being held at the military prison at Guantánamo Bay, Cuba.

And the American Civil Liberties Union pried loose a series of photographs of inmate abuse at the Abu Ghraib prison in Iraq and obtained documents about aggressive tactics used to extract information from detainees at Guantánamo Bay.

But taking federal agencies to court is expensive and out of reach for most citizens.

The Freedom of Information Act may be plagued by official stubbornness and chronic backlogs, but it remains an indispensable tool in an era of unprecedented government secrecy, said Steven Aftergood, director of the Project on Government Secrecy at the American Federation of Scientists in Washington.

"FOIA is one of the most vital tools we have left, and it's urgent that it be protected," Aftergood said. "It's under stress in this climate, but it's not broken."

Sunshine Week

The Austin American-Statesman continues a series of stories examining the public's access to government records and meetings as part of Sunshine Week, an annual effort by the nation's newspapers, television stations and other media to focus on the health of open government.


Sixteen years after he filed a Freedom of Information Act request, William Aceves, a law professor, still waits for documents about a defense program monitoring international waterways.

Informant: Teresa Binstock


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