Perspective: Freedom of information? Uncle Sam, get it right!

The Freedom of Information Act enables the public to obtain information from the federal government to ascertain, as stated by the Supreme Court, "what the government is up to." After all, a government shrouded in secrecy is not a government by the people and for the people.

With the coming of the electronic age, Congress enacted electronic-related amendments (E-FOIA) in 1997. These amendments required federal agencies to make available important records online, provide specific guidance to citizens on submitting information requests, and implement the technology necessary to post information proactively. The intent of E-FOIA was to increase public access to government information while at the same time reducing the burden created by FOIA requests.

All well and good, right? Wrong. A recent audit by the National Security Archive--an independent, nongovernmental research effort at George Washington University--paints a bleak picture of governmental noncompliance with E-FOIA a decade after its enactment.

Significant findings include the following:

• Only 21 percent of federal agencies post on their Web sites all four categories of records specifically required by the law (agency opinions/orders, statements of agency policy, frequently requested records and guidance to agency staff);

Government information should not be shielded simply because the government has not seen fit to obey the law and enter the information age.

• A mere 6 percent of agencies post all 10 elements of essential FOIA guidance (where to send FOIA requests, fee status, fee waivers, expediting process, reply time, exemptions, administrative appeal rights, where to send appeals, judicial review rights, and an index of records/major information systems);

• Just 26 percent of agencies provide online forms for submitting FOIA requests; and

• Many agency Internet links are incorrect or missing.

This situation is unacceptable. Not only is it against the law as written 10 years ago, it also completely goes against the goal of freedom of access to government information.

Yes, it is true that certain government information deserves protection, such as when true national security is at stake, but that is why FOIA includes certain exemptions. Without a proper basis to invoke an exemption, government information should not be shielded from coming to light simply because the government has not seen fit to obey the law and enter the information age.

Even potential arguments of cost and burden fall by the wayside when this situation is analyzed properly. It is far less burdensome and costly for federal agencies to post basic and most frequently requested information online than to respond separately to many individual requests for the same information when that information cannot be accessed on agency Web sites.

While the National Security Archive audit highlights some chief offenders of E-FOIA, including Immigration and Customs Enforcement (a Department of Homeland Security component) and the Air Force, the audit also compliments certain federal branches, such as NASA for proactively posting records of great interest to the public (like the Columbia Space Shuttle disaster) and the Department of Education for providing guidance and tools like online forms for FOIA requesters.

If NASA and the Department of Education can get it right, so should other federal agencies. It's not as if E-FOIA was just enacted yesterday. Ten years is plenty of time to come into compliance, and at the end of the fiscal year, compliance ultimately will reduce governmental FOIA burden and cost.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[perfectblue97]

Bureaucracy

I tried to put in a Foia request last year about something that was quite small and not at all secret last year. But the bureaucracy and the response that I got was so bad that I gave up and cobbled together what I could using third party data and Google.

So much for government accountability.

[gmcaloon--2008]

Bureaucratic Bumbling?

When the law was passed ten years ago, the Clinton administration issued a ruling to the affect that if there was any doubt about the permissibility of granting specific requests, all fed agencies should err on the side of release. The Bush administration subsequently issued a rule to the opposite affect; if in doubt opt for non-release.

After 9/11, another rule was issued to the affect that all gov. agencies should do whatever possible to discourage release of ANY information. When questioned by reporters, administration spokesmen justified the rule on national security grounds and then with claims that frivolous requests were being made and it was costing gov. too much money to process them and that was interfering with the administration?s attempts to reign in spending.

There is nothing new about any of this. It has been covered extensively in the media. It has got to do with a lot more than the usual bureaucratic bumbling.

[ITsince67]

FOIA

The gov is doing what they want to do - blocking the release of information. Because they do not want more questions and oversight.

I worked for 31 years designing computer systems for gov agencies. Was repeatly told by top management to reduce the number of reports as much as possible. Because under FOIA if a report existed, then a citizen could request it.

We got a FOIA request from the ACLU. I wrote an accurate response. Our CIO rewrote the response to the point it was professionally embarrassing to me - said we didn't have this, couldn't do that, etc. Anyone with any knowledge of computers or analysis should have spotted the stonewall. The ACLU did not challenege the material they were given by us.

We were told to refuse any FOIA request for any information not accurately identified. And not to offer any help or information. All requests for a new report - were to be prohibitively priced and based upon the availablity of our staff to work on the assignment - however, as a Manager I was instructed to see to it that staff were never available to work on any FOIA request unless approved by the agency's Director in advance. Many requests, would have only taken 15 minutes of a computer programmer's time.

Using a website as a way for staff and the public to query a database and obtain information would have been easy to implement. The reason this was not done - was gov officials did not want the information made public.

At 1 time, I worked for a state agency in Virginia that provided us to other agencies as consultants to build computer applications. An agency's Director had me removed as Project Leader because I was telling her infomation on what was occurring in her agency that she did not want to know. Her reason was that if I told her, she might slip and tell members of our state legislature.

[jefframse]

Remember George Romney??

Remember when George Romney, Governor of Michigan and a leading republican contender for the Presidential nomination in the late 60's came back from Viet Nam and said too much? He said something like, 'I must have been brainwashed' in response to how little he was permitted to know about our involvement in Viet Nam before he went over there to see for himself. That statement effectively wrecked his chance for the nomination and he dropped out of the national race.

Remember when he conducted a write-in campaign for soldiers families? Families were to send in to the state the names of their sons in the military and then the state of Michigan was going to send out Christmas Greetings to the soldiers. Well, many many more names came in from families than the small number that the federal government publicly declared was the total number of soldiers serving in Viet Nam from Michigan! It was a national embarassment to discover this discrepency on accident through that innocent write-in campaign initiated by the governors' office. Wow, I am still chagrined that the federal government did that at that time, and that we are again/or rather still limiting information to the public also.

Thank you for your insightful experience and also for considering my comments.