New Life for an Open-Government Law

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By Deborah Howell
Sunday, June 24, 2007

Without access to records, people cannot hold government accountable. One of the most important avenues for that on the federal level is the Freedom of Information Act (FOIA), now in the midst, I hope, of reform.

The law is 40 years old and has always had its problems. But getting documents has become harder as backlogs of requests have grown longer, and when documents do arrive they are often incomplete or censored. If you talk to FOIA professionals in federal agencies, they will tell you that the law was an "unfunded mandate" and that there has never been the staffing or funding to implement it properly.

Using the law "to foia" (it's become a verb in many circles) records is important not just to reporters but to businesses, nonprofit agencies and citizens; all use it for their own purposes. Reporters use FOIA a lot less than businesses do, probably one reason the U.S. Chamber of Commerce supports reform, along with about 100 other organizations.

The proposed changes are bipartisan, sponsored by Sen. Patrick J. Leahy (D-Vt.) and Sen. John Cornyn (R-Tex.). The most important parts of what is being called the Open Government Act would set up meaningful deadlines for agencies to act and a system to track requests; impose penalties for missed deadlines; clarify that the law applies to agency records held by private contractors; establish a FOIA hotline; and create a FOIA ombudsman.

The bill passed the House overwhelmingly in March but has been put on hold by Sen. Jon Kyl (R-Ariz.). His staff said that he has concerns about how it would affect the Justice Department.

The Coalition of Journalists for Open Government has kept tabs on the number of agencies typically not meeting the 20-day requirement for addressing simple requests. In 1998, five out of 26 agencies did not meet the requirement. In 2005, it was 13 of 26, and 2006 shows no improvement.

Post reporters make their own FOIA requests, and Post attorney James McLaughlin steps in if things get difficult. McLaughlin said that the Bush administration is "disinclined to be an open-government administration. There is a culture of secrecy, particularly after 9/11, that has seeped down to the agencies. And bureaucracies are already inclined toward secrecy by their nature." The government's FOIA pros say that while they may withhold documents, it is often at the behest of those who create or maintain them.

Richard Huff, who retired in October 2005 after working as a freedom-of-information officer at the Justice Department for almost 30 years, said a change of administration may not make much difference at most agencies. But at Justice, he said, the Reagan administration was probably the toughest, Attorney General Janet Reno was more open and Attorney General John D. Ashcroft pulled back on that openness.

Reno's parents and brother were reporters, and she met several times with the American Society of Newspaper Editors on freedom-of-information problems (I was FOI chairman of ASNE at the time). Huff said Reno helped cut an FBI backlog from five years to almost two months. That backlog has grown again since Sept. 11.

McLaughlin says the Justice Department "can be notoriously difficult, partly because they're all lawyers and they do have sensitive documents. So is the military, even on information on contractors that is not involved in national security."

Problems go back to before the Bush administration. At The Post, national political reporter Michael Shear submitted a request in 1998 to the Health Care Financing Administration, now the Centers for Medicare and Medicaid Services, for a report on a baby-switching case at the University of Virginia Medical Center. He followed up for many years and still has not received the documents he was seeking.

In an oft-cited 2002 case, the National Zoo turned down a request for animal medical records on the grounds that it would violate an animal's right to privacy and be an intrusion into the zookeeper-animal relationship.

Sarah Cohen, a Post reporter who uses FOIA frequently, gave me one of the worst examples. A requested news release from the Agriculture Department was sent only after some parts of it had been censored. Censoring a news release?

Fred Sadler, freedom-of-information officer at the Food and Drug Administration, said the ability to put information online has been a boon. But while simple requests have dropped from 52,000 in 1995 to 20,000 in 2006, requests now tend to be more sophisticated, focused and complex. "That means requests are harder to review, redact and release," he said. Sadler said the FDA backlog is at about 17,000 requests.

At the FDA, only 3 percent of requests are from the media; 10 percent come from lawyers; 20 percent from industry; 53 percent from companies and consultants that specialize in getting FOI documents; 5 percent from private individuals; and 9 percent from universities, public interest groups and hospitals.

Journalists and many others hope the bill will become law. Then Congress should start making its own records more available. The Sunlight Foundation was created to urge greater transparency and to enable citizens to get information about Congress online and in a timely manner. Ellen Miller, co-founder and executive director, said, "Congress has erected a fire wall around itself. It's really difficult to get any of the important documents about financial disclosure online."

Deborah Howell can be reached at 202-334-7582 or atombudsman@washpost.com.


© 2007 The Washington Post Company

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