March 28, 2007 4:00 AM PDT
Perspective: Freedom of information? Uncle Sam, get it right!See all Perspectives
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);
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.
is a partner in the San Francisco office of . His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to email@example.com 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.
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