Agencies’ progress meeting FOIA transparency mandate mixed

While the Obama administration has made clear its commitment to increasing transparency under the Freedom of Information Act, the progress federal agencies have made meeting that mandate is uneven, according to a new report from the National Security Archive.

The audit, conducted by the archive, an independent nongovernmental research institute at The George Washington University, found relatively few agencies have made concrete changes in response to memoranda from President Obama and Attorney General Eric Holder outlining FOIA reforms.

The 2009 memos directed agencies to presume in favor of disclosure in response to requests for public information. They also instructed agencies to use technology to make records available in advance of requests and told officials to review and improve their FOIA practices. To assess how agencies responded to these mandates, the archive filed FOIA requests with 90 agencies seeking records on the implementation of the memos.

Only 13 of 90 agencies implemented concrete changes in response to the memos, according to the report. For example, the Defense Department has adopted a policy of posting all requested documents online with rare exceptions. The Energy Department produces biweekly status reports on pending FOIA requests to "ensure accountability and timeliness." These types of policies, if implemented governmentwide, would improve transparency, the group said.

Another 14 agencies changed their FOIA training, but had not implemented any other policies. Eleven agencies merely circulated the memos. The remaining 52 agencies either had no records demonstrating their response to the memos or did not respond to the archive's request.

Most of the nonresponsive agencies were small and had low volumes of FOIA requests. But there were some notable exceptions, including the CIA, Treasury Department, and Securities and Exchange Commission.

The National Security Archive also looked at data on FOIA requests and denials, and noted an increase in information released coupled with a decrease in denials was most likely to suggest an "agency may be looking at the records with a fresh perspective." In fiscal 2009, only four of the 28 agencies that reported information were both making more items public and less frequently denying requests. Five agencies released less information and actively withheld more than in fiscal 2008. But for most agencies, progress was mixed.

National Security Archive Director Tom Blanton said the audit makes clear that too many government agencies are falling short of Obama's goals.

"It is time for a 'No FOIA Request Left Behind' initiative," Blanton said.

Office of Management and Budget spokeswoman Jean Weinberg said the administration has made its commitment to transparency clear through steps such as publishing the names of visitors to the White House and releasing "unprecedented amounts of government data" through Recovery.gov and Data.gov. Weinberg said OMB also is dedicated to working with agencies to reduce their long-standing backlogs as part of the December 2009 Open Government Directive. One element of that directive instructed agencies with significant FOIA backlogs to detail how they will reduce those backlogs by at least 10 percent annually.

"This is one step in a larger effort to change the default setting in the federal government from closed and secretive to open and transparent," Weinberg said.

OMB also is leading by example; it was one of the four agencies that both released more information under FOIA and denied fewer requests in fiscal 2009.

Given that progress varied widely, the archive determined that it will take at least one more year of data to assess how successfully agencies have implemented Obama's FOIA policy.

"One year is too early to render a final judgment on how far President Obama can move the government toward openness, but this audit finds that much more pressure and leadership will be necessary, both inside and outside the government," said Meredith Fuchs, the archive's general counsel.

The House Oversight and Government Reform Subcommittee on Information Policy, Census, and National Archives will hold a hearing Thursday on trends in FOIA administration.