More FOIA funds, staff needed, group says

A recent Justice Department report on agencies' compliance with a presidential mandate to improve processing of requests for government documents failed to address resource constraints, an independent research institute has charged.

In a letter to Attorney General Alberto Gonzales last week, the National Security Archive, a research institute and library located at The George Washington University, said the report did not acknowledge the scale of the challenge agencies face in reforming their Freedom of Information Act procedures. It avoided mentioning a lack of adequate funding and staffing, as well as the need for cross-agency leadership, the letter stated.

The executive order, signed by President Bush on Dec. 14, 2005, directs agencies to ensure that their FOIA implementation is citizen-centered and results-oriented. They must also appoint chief FOIA officers.

The order states that any changes should be made using "available resources" and "existing agency staff." The FOIA chief can, however, recommend adjustments to agency personnel and funding as "may be necessary to carry out" the order's policies.

Daniel J. Metcalfe, director of the Justice Department's Office of Information and Privacy, said there was little discussion of resources in the Oct. 16 report because the agency FOIA improvement plans reviewed in it were due "only six months after the executive order was signed, in the middle of a budget cycle." The National Security Archive also charged that, in its own review of agency FOIA improvement plans, it found that many are behind schedule and others don't comply fully with the 1996 Electronic Freedom of Information Act, which amended FOIA.

Metcalfe said the group's characterization that "many agencies" are lagging in complying with the 1996 amendments is a gross overstatement and mischaracterization. Several Government Accountability Office audits show otherwise, he said.

In March 2001, GAO reported (GAO-01-378) that all government agencies had implemented many of the law's provisions, including the governmentwide establishment of electronic reading rooms.

In response to a set of similar letters the National Security Archive sent to House and Senate committee leaders, Tabetha Mueller, a spokeswoman for the House Government Reform Subcommittee on Government Management, Finance and Accountability, said FOIA oversight hearings in February were likely.

"If you look at not complying with [the Electronic Freedom of Information Act], that is just as much a leadership problem from Congress and an oversight problem as it is the agencies' problem," Mueller said.

She said the Justice report provided a fair accounting of the steps agencies have taken to improve administration of FOIA, and gave evidence that agencies are responding to two FOIA hearings held by the subcommittee earlier this year.

But Meredith Fuchs, general counsel for the National Security Archive, said she believes the FOIA executive order was issued to keep Congress from passing legislation amending the law again.

"It's great to have cheerleading, but it is going to take money, hard work and an investment in technology and people to reform FOIA," Fuchs said. "We think that the executive order could have a wonderful impact on FOIA, but the agencies' goals actually have to be implemented."

Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., said in a statement that he shares the National Security Archive's concerns regarding compliance with the 1996 amendment.

"Legislative improvements to FOIA are meaningless without adequate resources and training to implement these improvements," Leahy said. "I am also troubled that many federal agencies lack access to the technology needed to implement the amendments. Technology can play an important role in promoting openness in our government."

Legislation moving through the House (H.R. 867) and Senate (S. 394) would impose tighter enforcement of the current 20-day deadline for responding to FOIA requests, create an online and telephone-based system for tracking FOIA requests and create a FOIA ombudsman to mediate disputes between agencies and the public over information requests.

Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition of media groups, said the Justice report and the agency FOIA improvement plans showed that an executive order is not a substitute for legislation to strengthen the process.

"The report did point out that the executive order really is unique and did go a ways to show that agencies should make some common sense changes," Blum said. "The problem is, where are they going to get the money?"

Patrice McDermott, director of OpenTheGovernment.org, a coalition of journalists and good government groups, said that without legislation tied to agencies' budgets, a substantial improvement in the administration of FOIA is out of reach.