Open government advocates slam report on FOIA reform

Former Justice FOIA chief says report is an "unfortunately transparent" attempt to make the situation look better than it is.

The Justice Department's second annual report on agencies' efforts to improve responses to requests for public information paints a disingenuous "rose-colored" portrait, advocates of openness in government said Monday.

The 118-page report, issued earlier this month under a requirement in the December 2005 executive order mandating improvements in the administration of Freedom of Information Act requests, stated that agencies are making "diligent and measurable progress." But there is little evidence to support this conclusion, members of the FOIA community said.

Daniel Metcalfe, the former director of the Justice Department's Office of Information and Privacy, said the report is an "unfortunately transparent" attempt to make the situation look far better than it actually is. Metcalfe is now retired.

Rather than simply stating whether agencies were successful in meeting their goals as outlined under the executive order, the report makes use of Office of Management and Budget-style traffic light grades measuring success, Metcalfe noted. The grades are assigned by the Justice Department "in coordination with OMB," the report stated.

"The executive order says that either you met an improvement goal or you didn't," Metcalfe said. "That doesn't translate to red, yellow, green. It's black and white. And unfortunately, there's a lot of black underneath OMB's yellow."

The majority of the marks handed out to the 25 agencies highlighted and their components, over dozens of categories, were green. There were only four reds assigned.

"The only middle ground that has any place in a report such as this," Metcalfe said, is where an agency missed an early goal or interim milestone "but at least redoubled its efforts to meet it subsequently and by now has done so." But even this is "lamely obscured" by the traffic light-style categorization, he said.

"All one need do is look at the Justice Department's own individual agency report, shockingly full of deficiencies declared early in January, and compare it to the colorful display here," Metcalfe said. "It makes a mockery of all good executive order implementation efforts elsewhere and previously."

But a Justice Department spokesman said in a statement that while everyone would agree that additional improvement is needed, there is no denying agencies have made real strides. The report represents just seven months of activity under the executive order, the spokesman said, and made clear that additional time is needed for full implementation.

"The report discusses deficiencies as well as improvements," the spokesman said. "It is certainly meaningful to have 41 agencies report a decrease in the number of pending requests."

The report stated that more than half of the 25 major agencies featured met their milestones and goals for fiscal 2006, and that 90 percent made meaningful progress. But the report's graphics show that only 11 of those 25 agencies met all their milestones, and that three agencies did not meet a single target.

Meredith Fuchs, general counsel for the National Security Archive, which collects and publishes declassified documents, said the report presents an odd analysis of the executive order's impact. She noted that it only describes progress at 25 agencies out of 90 that prepared FOIA improvement plans.

"For those 25, it picks and chooses some examples of improvement," Fuchs said. "It ignores the fact that very little seems to have improved for FOIA requesters. It is essentially smoke and mirrors designed to discourage Congress from enacting a law that would mandate improvement in FOIA processing."

In March, the House overwhelmingly passed sweeping legislation (H.R. 1309) to reform the FOIA system despite the Bush administration's contention the bill would impose substantial administrative and financial burdens on agencies. Similar legislation (S. 849) awaits action on the Senate floor, but Sen. Jon Kyle, R-Ariz., has placed a hold on the bill because of the Justice Department's objections.

Pete Weitzel, coordinator of the Arlington, Va.-based Coalition of Journalists for Open Government, said the report is "totally meaningless."

"The milestones themselves are simply a measure of bureaucratic progress," Weitzel said in a paper responding to the report. "They are the self-established steps toward service improvement, not a measure of service improvement itself."

Weitzel noted in the paper that the report commends the Housing and Urban Development Department for exceeding its milestones on backlog reduction. The agency proclaimed in its own annual report that it completed a goal a year ahead of time, he said. But the milestone was having the agency's deputy secretary circulate a memorandum on backlog problems while the agency's backlog of unprocessed FOIA requests increased 33 percent in fiscal 2006, Weitzel said.

"HUD's performance has significantly deteriorated, and here they are throwing them up as the example of good FOIA management," Weitzel said.

The report did not address overall backlog numbers. But according to Weitzel's paper, the number of unprocessed requests among the 25 agencies Justice decided to highlight actually increased 13 percent.

In addressing the matter, the report noted that 32 out of 92 agencies that report FOIA data found an increase in the number of pending requests. It is "not unexpected" that half of these agencies experienced an increase in the number pending at the end of the fiscal year, the report said.

"One should not underestimate the challenges that some agencies face in eliminating their backlogs," the report stated. "The number of requests agencies receive, and how complex those requests are, are not under the control of agencies, nor are the number of offices that must be searched in order to appropriately respond to a request."

Unaddressed in the report is the fact that three agencies -- NASA, the CIA and the Treasury Department -- reported fewer requests, but their backlogs still rose, Weitzel added in his paper.

The report stated that NASA reduced its backlog of pending requests from the triple digits into double digits, but a review of the agency's fiscal 2005 and fiscal 2006 FOIA reports shows that the backlog increased from 135 requests to 241.