Administration falling short on FOIA compliance, critics say

By Robert Brodsky

March 17, 2011

President Obama's call for transparency and openness in government is not resonating with all federal agencies, witnesses told a House panel on Thursday.

In one of his first acts in office, President Obama issued a governmentwide memo instructing agencies to comply with the letter and spirit of the Freedom of Information Act, which permits members of the public and the media to obtain government documents and correspondence. The directive also called on officials to reverse the policies of the Bush administration and err on the side of disclosure rather than on secrecy.

But bureaucratic silos and the failure of some agencies to fully embrace a culture of accountability might be inhibiting the administration from reaching that goal, even as it takes it takes concrete steps in the right direction, transparency experts told the House Oversight and Government Reform Committee.

"If FOIA is the yardstick for openness in government, then we haven't gotten very far," Angela Canterbury, director of public policy at the Project on Open Government Oversight, told the committee.

The 35 largest agencies refused to release any information in roughly one third of the more than 544,000 FOIA requests they received last year, although some of those requests related to documents that could not be located, Canterbury said, citing a new analysis by The Associated Press.

Earlier this week, the Justice Department launched FOIA.gov, which provides a wealth of new data on the government's compliance with the act. The site, which also features reports from individual agencies on their transparency efforts, shows while the number of requests for information has been on the rise, the backlog of requests dropped significantly in fiscal 2010.

But Justice's own FOIA backlog has grown by 33 percent in the past year, according to Daniel Metcalfe, executive director of the Collaboration on Government Secrecy, which is devoted to openness in government. "When the lead government agency for the FOIA fails in its entirety to reduce its own backlog, it makes it much harder to press other departments and agencies to do so," said Metcalfe, who formerly served as the director of the Office of Information and Privacy at the Justice Department.

Metcalfe also raised concerns over White House visitor logs. The administration has created a public database of more than a million visitors to the White House during the past two years. But, some of the records are not available on the site and the administration has determined FOIA no longer applies to those records, Metcalfe said.

"The White House can effectively withhold from the public any White House visitor information it chooses, whenever it chooses, invisibly," he said.

Other critics offered an even harsher assessment of the administration's FOIA policies. Judicial Watch, a conservative advocacy group, has filed 325 FOIA requests with the administration for documents related to federal bailouts, the mortgage crisis and complaints about airport pat downs, often to no avail. The group has now filed 44 lawsuits with the administration in federal court seeking access to those documents.

"The Obama administration is less transparent than the Bush administration," said the group's President Tom Fitton. "The Bush administration was tough and tricky, but the Obama administration is tougher and trickier."

Among the agencies with the worst reputation for responding to FOIA requests, witnesses said, are the Treasury Department and the Securities and Exchange Commission.

Committee lawmakers, predictably, were split on the progress being made to promote openness in government operations.

"Transparency is often the victim of electoral success," said committee Chairman Darrell Issa, R-Calif. "Every aspiring presidential candidate promises voters to inaugurate a new era of open government upon his or her election. And nearly every new administration immediately sets a course of delaying, redacting, or denying FOIA requests when the public disclosure of information is deemed politically inconvenient."

Issa focused on the case of a Homeland Security Department employee who he claims was retaliated against after complaining to the inspector general that political appointees were interfering with FOIA requests. Issa accused DHS leadership of improperly demoting Catherine Papoi, a former deputy unit chief in charge of FOIA, after she met with Issa's staff.

DHS officials responded in a harshly worded letter to Issa that Papoi was under consideration for a senior executive position, which eventually went to another more experienced employee. The decision, the letter said, was made several months before Papoi met with the committee.

The committee's ranking member, Rep. Elijah Cumming, D-Md., argued Issa's conclusions "are not based on evidence." But, Issa was not buying the department's explanation.

"It's deeply unhelpful and misleading for the Department of Homeland of Security to try to assert that a career employee who was stripped of her title, office and job responsibilities was not demoted," the chairman said. "These knee-jerk claims defy common sense and raise further concerns about the department's leadership and commitment to a FOIA process free from improper interference by political appointees."

On Thursday, Cummings, along with each of the Democratic members of the committee, introduced the Transparency and Openness in Government Act. The legislation includes five bills that passed the House during the 111th Congress:

Thursday's hearing took place during Sunshine Week, a national initiative to promote transparency in government.

By Robert Brodsky

March 17, 2011

http://www.govexec.com/oversight/2011/03/administration-falling-short-on-foia-compliance-critics-say/33565/