Openness Law May Get Muscle

"A number of the reforms included in these bills are pretty basic in a lot of places," said Sen. John Cornyn (R-Tex.). "In Washington," he added, "there's no real presumption of openness." (By Joe Raedle -- Getty Images)
By Brian Faler
Special to The Washington Post
Wednesday, July 6, 2005

A political odd couple, backed by an unusual coalition of advocacy groups and news organizations, is looking to crack down on government officials who ignore public requests for information.

Sens. Patrick J. Leahy (D-Vt.) and John Cornyn (R-Tex.) are pushing a package of legislative proposals that would create, for the first time, penalties for agencies that ignore Freedom of Information Act requests. They also want to create a position for an independent arbiter -- an ombudsman for FOIA -- who would help referee conflicts between the public and the government while requiring departments to provide more information on how quickly they process requests.

"A number of the reforms included in these bills are pretty basic in a lot of places, including my home state of Texas," said Cornyn, a former state attorney general. "In Washington, there's no real presumption of openness in the culture. If you're persistent enough and you're willing to wait long enough, you might actually get what you're entitled to. But there seems to be very few incentives . . . to encourage timely compliance with FOIA requests."

The push -- the first in years -- comes as the act, signed into law by Lyndon B. Johnson on July 4, 1966, marks its 39th year. The law replaced sections of the Administrative Procedures Act that required those wanting information to explain why they needed it. FOIA shifted the burden to the government, requiring it to explain why a request should not be granted.

Since then, FOIA has been used by millions every year. Journalists are the most high-profile users. But in terms of the raw number of requests, most come from the general public. More than 4 million were submitted last year, according to a Government Accountability Office analysis of FOIA statistics submitted by 25 agencies. The majority -- 82 percent -- went to two agencies: the Social Security Administration and the Department of Veterans Affairs. Many requests classified by the agencies as FOIA-related were from individuals trying to find out about their own medical records or benefits.

The government can refuse requests for such reasons as national security, personal privacy and law enforcement concerns. Ninety-two percent of requests were granted in full last year, according to the GAO. Three percent were partially granted, 1 percent were denied and 5 percent were "not disclosed for other reasons," the GAO said.

When the VA and Social Security totals are excluded from those calculations, the numbers fall substantially, with 61 percent granted in full and 15 percent partially released. Those numbers varied widely across the government, with some agencies -- including the State Department, the CIA and the National Science Foundation -- granting in full less than 20 percent of requests.

The GAO said the backlog of requests has increased 14 percent since 2002. The program has been known among journalists for sometimes-epic delays, with some reporters waiting years for requests to be answered. The GAO could not determine from the agencies' statistics the average or the range of request-processing times.

Experts said there are good reasons for delays. More people are requesting more information through FOIA -- the GAO said the number of requests increased by 71 percent between 2002 and 2004. Documents may be difficult to locate, and requests may be unclearly written. Agencies may not have the money or manpower to keep up with the requests and still tend to their primary missions.

A Justice Department official told a House subcommittee in May that the government spent more than $300 million last year responding to FOIA requests. A Justice Department spokeswoman declined to comment yesterday.

Cornyn and Leahy are pushing a number of legislative tweaks that would toughen the law. They would penalize, for example, agencies that do not respond to requests within 20 days. There is no firm deadline for turning over documents, but under current law, an agency is required to tell requesters within 20 business days whether their requests will be met. The senators' proposal would reduce the number of legal grounds on which an agency could withhold a document if it does not meet the 20-day deadline.

The legislation would also order the creation of a government-wide tracking system -- similar to ones used by commercial delivery companies -- that would enable the public to keep tabs on requests as they wend their way through the bureaucracies.

The ombudsman provision is intended to give requesters who are unhappy with an agency's decision an alternative to going to court. Currently, someone can appeal an agency's decision back to the department and then sue -- an option that is too costly for many, the lawmakers' aides said.

The proposals would also make it harder for the government to avoid paying requesters' legal expenses when disputes end up in court but are resolved before a judge renders a decision.

The bills -- and similar legislation in the House -- are aimed at making the agencies more responsive. But open-government advocates said they would not have much effect on what information the government ultimately decides to release.

"It doesn't go to the decision making," said Pete Weitzel of the Coalition of Journalists for Open Government. "It gets at the process. It says: We're not arguing a bad decision has been made. We're simply saying: Let's get about it more efficiently . . . give people an answer so that if they disagree with it they can take an appeal."

The legislation has been endorsed by a number of organizations across the political spectrum, including the American Civil Liberties Union, the Heritage Foundation and Common Cause, along with some news media organizations. The Washington Post is a member of the Newspaper Association of America, which supports the legislation.

While it is easy to find supporters of the plan, it is much more difficult to scare up its opponents.

"A number of my colleagues have been very skeptical about any of this because they don't view it like I do as a right of the citizenry to know what the government is doing. They view it as a favor we would be doing the press," Cornyn said, without naming names. "The problem with this issue is it's such a good government position that it's hard to drag people out into the light of day where they'll have a debate with you. . . . What happens is that you get a passive-aggressive attitude where people seemingly are willing to work with you, but when it comes to actually moving legislation, it's pretty tough slogging."

© 2005 The Washington Post Company