You are not logged in. LOG IN NOW >

Obama Administration Falling Behind In Freedom of Information Requests, Senators Charge

BY Sarah Lai Stirland | Wednesday, March 13 2013

The leaders of the Senate Judiciary Committee on Wednesday expressed frustration with the Obama administration's inability to comply with a 2007 open government law that Congress enacted to speed up the processing of Freedom of Information Act requests.

Advocates say that if the administration wants to get serious about improving its record on access to information, it should apply the tech savvy that has become a hallmark of the Obama brand.

Both Committee Chairman Patrick Leahy, a Democrat from Vermont, and its top Republican Chuck Grassley during a Wednesday morning hearing on the OPEN Government Act cited analyses from open government groups that showed that executive branch agencies are either simply not complying with the law, or not keeping up. Both senators cited a December 2012 study from the National Security Archive, a research institute and archive at George Washington University, that found that 56 federal agencies haven't fully complied with the 2007 OPEN Government Act.

Grassley also cited a December study from Syracuse University that found that there are more FOIA-related lawsuits under the Obama administration's first term than there were under President Bush's second term.

That's a troubling development to the senators because the 2007 law set up a specific office, the Office of Government Information Services, to mediate disputes between agencies and FOIA requestors, suggesting that the law isn't working.

OGIS Director Miriam Nisbet noted that the volume of lawsuits has reached a level where the Second Circuit Court of Appeals in DC has set up a pilot mediation program in an attempt to settle the fights without having to go through the whole costly litigation process.

Senator Cornyn, (R-Texas,) said he was troubled by these developments.

"The purpose [of the Act] was to prevent litigation," he said. "How do we prevent these cases getting to the court in the first case?" he asked Nisbet.

Nisbet didn't answer the question directly. In fact, none of the testimony from Nisbet or Melanie Pustay, the director of the Justice Department's office of information policy, seemed to satisfy the few members of the Judiciary Committee who were there, apart from Sen. Al Franken, a Democrat from Minnesota.

Both Cornyn and Grassley suggested that Congress needs to amend the open government act to make the rules clearer to the agencies.

For her part, Pustuy said that the administration's agencies have improved the processing of FOIA requests by reducing average processing times to an average of 20 days, and cutting down on the backlog of requests.

"That’s one of the key accomplishments of this administration. When you compare the backlog from 2009 to the backlog at the end of 2012, the backlog was reduced by 45%, so it’s a tremendous accomplishment. During that time, more than 2.5 million requests were processed by agencies," she said.

Open government advocates testifying on a second panel charged Pustuy with whitewashing the facts. Others said that FOIA officials need to improve their use of technology to solve the problems discussed during the hearing.

"The Justice Department's is a step in the right direction," said Kevin M. Goldberg, a lawyer working on behalf of the American Society of News Editors, and the Sunshine Government Initiative. "But as Justice Department officials told the GAO last year, was never meant to manage requests. It's simply a tool to hold agencies accountable for meeting their FOIA responsibilities. The new multi-agency FOIA Online system holds more promise by creating a freely searchable online database of already disclosed records that will advance the proactive disclosure of frequently-requested records. It will create a streamlined electronic tracking system, fulfilling a mandate of the OPEN Government Act that could save as many as 30 minutes a request by automating the logging and confirmation of requests."

He estimated that process could have saved 325,000 "person hours" and would have been the equivalent of hiring 163 additional FOIA officers to process the 650,000 requests that federal agencies received in fiscal 2012.