FOIA process critics rank agencies on their public posting of documents.
Rookie President Obama’s 2009 vow to lead “the most transparent administration in history” continues to reverberate in the politically diverse community of transparency advocates, which is marking the 10th annual Sunshine Week (March 15-21) with an array of agency report cards and opinionated discussions.
That vow “has become a joke in most of our community,” said Sean Vitka, federal policy manager for the nonprofit Sunlight Foundation, speaking at a Friday panel discussion marking Freedom of Information Day at Washington’s Newseum, organized by Openthegovernment.org.
Vitka criticized the Justice Department’s invocation of the Espionage Act in prosecuting national security whistleblowers and bemoaned an “ethos of resistance” toward disclosure within agencies caused by “arthritic institutionalized inertia.” But he credited Obama with making disclosure the default priority, signing the 2014 DATA Act and releasing for the first time catalogs of agency data for the public.
The nonprofit National Security Archive used the event (disclosure: this reporter participated in one panel) to circulate its new ranking of agencies for compliance with rules requiring online posting of Freedom of Information Act releases. It found that of 165 federal offices at agencies with chief FOIA officers, only 40 percent had followed the law, while 33 agencies had not posted even one release.
So-called “E-Star” agencies that complied effectively with a 1996 electronic disclosure law included the Energy and State departments as well as the FBI, a dozen agencies cooperating in a FOIA online project and the Nuclear Regulatory Commission, in the view of the National Security Archive.
Worst at FOIA posting were agencies that generally lacked a FOIA reading room on their websites: the Drug Enforcement Administration, the Equal Employment Opportunity Commission, the National Capital Planning Commission, the Homeland Security Department’s Protection and Programs Directorate, and the White House Office of Science and Technology Policy.
The most common reasons agencies gave for not posting is difficulty in posting on a format that complies with the Americans with Disabilities Act, followed by concerns over individual privacy and costs, the study found.
Without FOIA and other transparency requirements, the public would “never have seen the CIA torture memo, [Medicare and Medicaid officials’ release in 2013 of] data on hospital procedure costs or the Consumer Product Safety Commission’s product complaint website,” National Security Archive Director Tom Blanton told the symposium. He gave Obama credit for such “policy successes and data breakthroughs.” But the president’s 2011 records management memo “came 25 years too late,” Blanton said, adding that the Defense Department still denies access to nuclear stockpile documents that State declassified 16 years ago. Because of former Secretary of State Hillary Clinton and other predecessors withholding their documents, “we’ve lost a whole generation of email,” he said. “And presumption of disclosure means posting—if something’s not online, it doesn’t exist.”
Miriam Nisbet, former director of the Office of Government Information Services at the National Archives and Records Administration, predicted that as FOIA and mediation between agencies and FOIA requesters “mature, agencies will be able to see the bigger picture of freedom of expression that people in other countries die for, which we often take for granted.” FOIA information “is in the news every day, but the requesters still complain that the system is broken,” she said.
The cost to the government of administering FOIA--about $430 million a year--Nisbet added, “Sounds like a lot but covers 700,000 requests. But the more we disclose, the more they ask for. The whole process of consulting other agencies is huge.”
She reiterated prior backing for the bipartisan FOIA reform bills pending in Congress, which would enhance the independence of the ombudsman’s office and create a council of FOIA officers, but contains no appropriation. “It’s one of the original unfunded mandates,” she said.
Nisbet expressed confidence, however, that agencies could manage the “very difficult” task of changing a culture in which too many “units are in their own silos.” More can be done to exploit information technology to “do better proactive disclosure,” she said.
News media veterans marked the 10th anniversary of Sunshine Week by recalling how they launched it using cooperative efforts from editors, public officials and celebrities to circulate public service advertisements around the country--the Daily Oklahoman even ran Sunshine logos alongside every story that used government documents.
The press, however, due to budget cuts, is playing a less prominent role in FOIA requests and related litigation, they noted. That leaves the field to domination by nonprofits, bloggers, advocacy groups, and corporate lawyers. The resulting information “is now more likely to be released raw on websites or through the filter of a private group,” said Bill Sternberg, deputy editorial page editor of USA Today.
Sean Moulton, director of the Open Government Policy at the Center for Effective Government, expressed disappointment with the Obama teams’ performance in his own group’s study of FOIA responsiveness. “No one in the open government community wants to infringe on personal privacy,” he said, but such arguments “are used by government and corporations to shield information.” Moulton expressed hope that current transparency efforts “are being institutionalized, being baked in so the next administration can’t undo them."
Shanna Devine, legislative director of the Government Accountability Project, praised former Obama White House special ethics counsel Norman Eisen for strengthening whistleblower protections via appointees at the Office of Special Counsel and the Merit Systems Protection Board.
Eric Mill, a technician working on the special IT operations force called the 18F Project at the General Services Administration, said too many agencies he visits demonstrate “a terrible lack of ambition for use of the Internet,” responding with half measures and creating “an artificial scarcity of data in a world of CDs and tapes and paper.” He and others stressed that converting or preserving documents in electronic form enhances future searchability for responding to FOIA demands.
One federal employee in the audience pleaded with the transparency advocates by asking, “What do you want us to do?” Michael Binder, a technical adviser to the Air Force Declassification Office who works out of the National Archives and Records Administration but spoke on his own behalf, said he and colleagues are constantly briefing other employees and outside experts on the value of “proactive review” of documents for possible release under FOIA.
But FOIA officers cannot reduce the number of requests or process them faster, he stressed. “There’s no substitute for eyes on words, and a line-by-line review” for sensitive information, Binder said. Declassifying more quickly “won’t work if we don’t get more people.”