Some progress is being made in Congress toward upgrading the Freedom of Information Act, the landmark open government law approved in 1966. The FOIA guarantees every citizen the right to get a copy of any federal document that is not excepted from release. Exceptions include national security, law enforcement, commercial secrets and privacy. Hundreds of millions of tax dollars have been saved thanks to revelations made possible by FOIA.
Sen. John Cornyn, R-Tex., and Sen. Patrick Leahy, D-Vt., have been pushing a package of much-needed FOIA reforms since 2001. Among other things, these would create an ombudsman to hear disputes between requesters and agencies, and ease the financial burdens on requestors who appeal adverse disclosure decisions. Progress has been slow because most members of Congress in both parties rank improving transparency and accountability in government right up there in importance with finding new uses for ceiling wax. But there has been some good news, including passage by the House of a compromise FOIA reform bill that is minimally acceptable and the prospect for a Senate vote on a similar measure later this year. The Senate bill has bipartisan support and should be expedited.
President Bush briefly short-circuited reform efforts in 2005 by signing an executive order telling agencies to designate a chief FOIA officer and to submit a plan for improving their administration of the disclosure law. The response was less than thunderous, with even the Justice Department, which oversees the FOIA, failing to meet 30 of its performance improvement goals. Backlogs of unprocessed FOIA requests are still growing steadily at most agencies.
While Bush has been almost uniformly hostile to FOIA concerns, he did sign into law the Federal Funding Accountability and Transparency Act of 2006. That law mandates creation of a Google-like searchable Internet database of most federal spending and contracts that should be up in two years. Backers of the new law predict it will quickly rank with the FOIA as a transparency landmark. An unintended consequence, however, will be adding to the unprocessed FOIA backlog. This is because, as citizens gain more data on where their tax dollars go, they will likely submit more FOIAs seeking information on the hows and whys of federal expenditures. Thus, the time to reform the FOIA is now, not later.
Bush should also encourage another transparency landmark by directing federal agencies to stop ignoring the Electronic Freedom of Information Act approved in 1996. That measure established four categories of documents that agencies are required to post on the Internet. Yet, a recent survey by the National Security Archive found that fewer than one in four agencies are doing so. A mere six percent post comprehensive FOIA guidance and just one in four allow a requester to submit online requests.
As Eric Sinrod, a San Francisco lawyer who specializes in electronic information issues, noted in a recent issue of Access Reports, this state of affairs not only “is against the law as written 10 years ago, it also completely goes against the goal of freedom of access to government information.” A decade is long enough to wait for federal agencies to comply with the law.