Incentives and Consequences Dominate House Hearing on FOIA
OPEN GOVERNMENT ADVOCATES PUSH FOR FOIA REFORM
By REBECCA CARR|
|Cox News Service|
WASHINGTON - When public citizens request federal records under the
Freedom of Information Act, they often face bureaucratic foot dragging,
long delays and unwarranted denials, open government advocates said
Wednesday.
In addition, there is no record of a federal employee being disciplined
for failing to obey the law, advocates told the House Government Reform
Committee's panel on accountability.
''Bureaucratic stultification accounts for most of the problems,'' said
Mark Tapscott, director for media and public policy at the Heritage
Foundation, a nonprofit think tank based in Washington. And while no one
appears to have been held accountable for not responding to a FOIA
request, ''there are consequences but usually it's because they provide
too much information,'' Tapscott said.
The law needs a major overhaul to foster public knowledge, civic
participation and openness, said Jay Smith, president of Cox Newspapers
and chairman of the Newspaper Association of America.
''There is a fixed culture within government that the information belongs
to the agencies, not American citizens,'' said Smith in his written
statement to the committee. ''Some resist transparency at all costs, even
though transparency in government will help it become more efficient and
more accountable.''
Former Attorney General John Ashcroft wrote a memo in the fall of 2001
suggesting that federal agencies should withhold information if they are
uncertain about whether FOIA exemptions apply. Asked whether the memo
affected requests for information, Smith said it had a very big impact. ''It's made
it much, much easier for folks to say no,'' Smith said.
Carl Nichols, deputy assistant attorney general of the civil division,
which advises federal agencies on the law, said that his department is
committed to responding to requests in a timely fashion.
The problem, Nichols said, is a lack of resources to handle a tremendous
growth in requests.
''The goal of achieving an informed citizenry is often counterpoised
against other vital societal aims,'' said Nichols, citing national
security, efficient government operations, prudent use of tax dollars and
privacy concerns.
The government spends more than $300 million each year responding to
requests, he said. Last year, the number of responses surpassed 4 million,
most of them answered in full.
The number of requests has surged by 71 percent since 2002, according to
an analysis by the U.S. Government Accountability Office released at the
hearing. But the same study showed that the number of cases carried over
from previous years grew by 14 percent last year.
The GAO report found significant differences in the way agencies respond
to the FOIA. While 92 percent of the requests were filled last year, three
agencies that handle complex and security-related issues -- the State
Department, the CIA and the National Science Foundation -- turned over
records for the full request less than 20 percent of the time.
The system is clearly flawed, Smith told lawmakers. Agencies do not have
strong incentives to act on requests in a timely fashion or to avoid
costly litigation with requesters, he said.
The lack of accountability leads to lost requests or an inability to
track their progress, Smith said. Too often, officials lack the tools and
resources to adequately respond to requests. In other cases, denials are
simply unwarranted.
The consequence of lost or rejected requests is that the public remains
in the dark. The law is crucial to citizens, companies and news
organizations, he said.
For example, The Dayton Daily News, a Cox newspaper, used FOIA to pry
open details about the deaths of young Peace Corps volunteers overseas two
years ago. The award-winning series resulted in congressional hearings and
prompted the organization to revise its policies on security.
And the Associated Press found that researchers at the National
Institutes of Health were collecting royalties on drugs and devices tested
on patients who did not know of the researchers' financial interest in the
products. The practice ended after the story hit the wire.
Rep. Carolyn Maloney, D-N.Y., said the law needs to be revamped so that
the public has an ombudsman to settle disputes over requested information
and citizens can find out why so much of the requested information is
blacked out.
''It's startling to me'' that news organizations have trouble getting
information out of the federal government, Maloney said. ''You can imagine
how hard it is for Joe Blow or Jane Blow.''
Rep. Todd Russell Platts, R-Pa., chairman of the subcommittee, said the
lack of consequences for failing to respond to FOIA requests is one of the
most frustrating parts of his job as the chairman of the panel overseeing
government accountability.
Legislation that would create a government ombudsman, tighten FOIA
compliance deadlines and set up penalties for failing to adhere to the law
was introduced by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt.
The legislation still has only a handful of supporters, according to
Thomas, an online bill tracking system, but it is gaining widespread
support among open government organizations.
''The legislation would restore meaningful deadlines for agency action
and impose real consequences on federal agencies,'' Cornyn wrote in a
statement to the committee.
