WASHINGTON – Bill Allison,editorial director of the Sunlight Foundation,has plenty of horror stories about open records requests filed with the federal government.
One has languished for a decade without a response. In another,a colleague fought with the State Department to get a document that had been redacted to the point of uselessness. His colleague was researching eccentric billionaire Howard Hughes’ involvement in an attempt to locate a sunken Soviet submarine and received a document with everything blacked out but Hughes’ name.
An investigative journalist who previously worked for the Philadelphia Inquirer,Allison now advocates for greater government transparency and access to public records at the nonprofit Sunlight Foundation.
“I think that right now,not releasing is the default position and you have to argue to get the information,” Allison said.
A Scripps Howard Foundation Wire analysis of federal departments’ Freedom of Information Act annual reports from the past five years revealed little improvement since President Barack Obama’s memorandum at the beginning of his term calling for more transparency.
The 15 cabinet-level departments granted 62.3 percent of open records requests processed in 2010. That is a 0.6 percentage point improvement over the previous year,when the agencies granted 61.7 percent of requests.
Obama’s memorandum,his first executive action after taking office in January 2009,pledged an “unprecedented level of openness in government” and emphasized creating a “system of transparency” to promote accountability.
Congress enacted the Freedom of Information Act in 1966. It provides public access to federal records not protected by exemptions. Each federal department has a FOIA Web page,and anyone can submit a request using form letters available online.
Some FOIA,or “sunshine law,” advocates said the culture of secrecy at federal departments has not changed.
“You really need to change the culture in Washington from one of ‘release as little as possible’ to really responding to FOIA requests,” Allison said. “There are obviously reasonable constraints,but you have agencies that think anything that could potentially be embarrassing to the department … shouldn’t be released.”
According to FOIA.gov,exemptions to the federal FOIA law include information that:
- Is classified to protect national security
- Relates only to internal personnel rules of an agency
- Is prohibited from release by other federal laws
- Is confidential commercial or financial information
- Includes communications within or between agencies that is protected by law
- Would invade another person’s privacy
- Is compiled for law enforcement purposes if it could cause certain harms
- Involves the supervision of financial institutions
- Describes geological information about wells
“There are traditions at some agencies that really don’t take to heart the presumption of disclosure which FOIA requires,” Rick Blum,coordinator for the Sunshine in Government Initiative,said. “Some are completely denying a request based on an overly broad interpretation of personal privacy interests.”
Law enforcement and privacy exemptions are too broad,said Lucy Dalglish,executive director of the Reporters Committee for Freedom of the Press.
“We need to revisit what we consider to be private information,” Dalglish said. “In federal FOIA,if a document lists the name of a living human being,the default is to list it as a privacy exemption.”
She cited a policy that keeps mug shots of federal prisoners private,although some states release prisoners’ mug shots.
FOIA exemptions were applied to 5.3 percent of requests processed in 2010,while 32.4 percent of the requests processed were denied for other reasons. Other reasons for denial include:
- The records do not exist
- The request does not follow the proper guidelines
- The records refer to another agency
- The cost to process the request would be more than $25 and the requester is not willing to pay
- The records are not reasonably described
“If the request is vague,if it’s broadly worded,if it’s unclear what the requesters are really asking for,the agency has to probe and dig a little bit and talk to the requester,” Blum said.
Some departments have better track records of releasing information than others. The Department of Agriculture granted 87 percent of the requests it processed in 2010 and 79.7 percent of requests it processed the previous year.
The number of requests processed spiked in 2006 and 2007,possibly throwing off the department’s data,but it has still maintained a consistently high percentage of requests granted over the past five years.
The department declined to comment officially,but a FOIA officer at the department who requested anonymity said the staff works hard to adhere to the Obama administration’s open government policies and to provide as much information as possible.
In contrast,the State Department granted an average of 40 percent of the requests it processed during the past five years.
“The Department of State maintains information on a global scale,most of which relates to sensitive and complex national security and foreign policy matters,” a department official said in a statement. “Much of this information contains properly classified information,the disclosure of which could cause harm to the national security of the country.”
The department cited legal exemptions in 21.4 percent of the requests it processed in 2010. It denied 23.8 percent of requests for other reasons.
Allison said the State Department is one of the most difficult departments to deal with.
“Occasionally we would get one document with two-thirds redacted saying it was a full response to the FOIA,when we knew there were hundreds of documents in existence,” Allison said.
He once got a response to a State Department records request more than 10 years after he filed it. He was researching Latin America while working for the Center for Public Integrity,and he requested State Department correspondence relating to a government program. The State Department recently sent a letter to the center asking if Allison still wants the information he requested in 1999. He said yes,and is awaiting a reply.
The law requires agencies to respond to requests within 20 business days. The time limit can be extended under “unusual circumstances.”
At least one department has made a conscious effort to improve its FOIA process.
The Department of Housing and Urban Development processed about the same number of requests in 2010 as in previous years,but it granted 55.9 percent,up from 39.8 percent the previous year.
“There has been an increased emphasis by the senior staff of the department,” Jerry Brown,HUD public affairs officer,said. “That was brought about by the president’s initiative,and as a result of that our numbers have been quite high.”
In addition to digitizing records to make them more manageable so requests can be processed more quickly,the department’s FOIA experts now have metrics applied to their performance.
“You actually know who’s producing,what they’re producing,and at what rate they’re producing,” Brown said. “There’s a performance measurement.”
Other initiatives have abated the transparency problem,but those efforts are not enough to appease everyone caught behind the red tape of the federal government. For example,to make commonly requested records more accessible,departments have created “reading rooms” on their FOIA websites with digital databases and records.
“I’ve seen some improvement in some areas,but the answer to government openness is not creating more accessible databases. That’s only part of it,” Dalglish said. “We need a culture change so that when someone asks for a piece of information,they should be able to make a discretionary release and believe they will not get into trouble by releasing it.”
The Treasury Department attributes its consistent decline in percentage of requests granted to its efforts to put more information online.
“Treasury has increased the amount of information available without a FOIA request,particularly on our website,” Matt Anderson,a department spokesman,said. “The result is that an increasing percentage of requests are in areas,such as private taxpayer records,where discretionary release is not permitted.”
The department granted 65.6 percent of requests in 2006,a rate that steadily declined to 50.8 percent in 2010.
Since Obama issued the FOIA memorandum,some departments have improved their response records,but the government still has “quite a ways to go,” said Rep. James Lankford,R-Okla.,chairman of the Subcommittee on Technology,Information Policy,Intergovernmental Relations and Procurement Reform.
“The president made it a day-one task to have a presumption of openness,and it’s a good thing to have,but the problem is actually fulfilling that,” Lankford said. “I think there will always be a reality when dealing with government records that … people don’t like putting what they saw as private out into the public,when in reality it was always public. It was done with taxpayer dollars.”
Reach reporter Pamela Engel at [email protected] or 202-326-9871. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.