Congress Asking the Right Questions on FOIA

by Gavin Baker, 2/12/2013

A recent letter from Congress to the Justice Department represents a positive development toward strengthening the Freedom of Information Act (FOIA). The letter, sent Feb. 4 by the House Committee on Oversight and Government Reform, asks what steps the government is taking on a number of key transparency improvements. The reforms, if implemented, could significantly improve the public's access to information about critical topics such as food safety, compliance with environmental standards, and special interest influence in government decision making.

Thoughtful Oversight

The letter, signed by committee chair Darrell Issa (R-CA) and ranking member Elijah Cummings (D-MD), indicates a bipartisan approach to congressional oversight of the executive branch's responsibilities to be transparent under FOIA. In the letter, Issa and Cummings ask for information about a number of key issues in FOIA administration, including the following:

  • Outdated regulations that may be hampering agency responsiveness to FOIA requests. A recent study by the National Security Archive found that a majority of agencies have not updated their regulations since FOIA was last changed in 2007.
  • Proactive disclosure of public information and whether agencies are posting frequently requested records online as required by the Electronic FOIA Act. A 2012 audit by the Government Accountability Office found that "not all agency components are giving sufficient attention" to complying with that requirement, and the Center for Effective Government's Gavin Baker called for more congressional oversight of this provision in a Jan. 28 presentation at the Advisory Committee on Transparency.
  • Backlogs in responding to requests and what the Department of Justice is doing to reduce them, especially at agencies with significant backlog problems (the Department of Homeland Security, for example).
  • The use of exemptions to withhold information from the public and whether agencies are reducing their use of such exemptions.
  • Fees that agencies charge for copying and other services when responding to FOIA requests and whether those fees have been adjusted as required by the OPEN Government Act.

The committee sent the letter to the Justice Department's Office of Information Policy, which oversees agency compliance with FOIA. The office – and the Obama administration – should welcome this oversight and respond substantively to the questions. Such a response could initiate a frank conversation about how to better fulfill the promise of the FOIA: that what is known by the government will be known by the people.

Open government advocates praised the letter. The Sunshine in Government Initiative said the letter asks "pointed questions," and the Washington Examiner's Mark Tapscott wrote that it "could be the most comprehensive congressional review [of FOIA] in three decades."

The Department of Justice and Freedom of Information

The Justice Department derives much of its influence on FOIA matters from its role as the government's lawyer. Under FOIA, requesters who feel the agency has not fulfilled its legal obligation may challenge the agency in court. Such lawsuits typically question an agency’s withholding of information or failure to promptly respond to requests for information.

Despite the fact that each agency makes its own decisions on responding to FOIA requests, it is the Justice Department that decides whether, and how, to legally defend the actions in question in such cases. Consequently, department lawyers exercise discretion about which cases can and should be defended, and which should instead be settled. This makes the Justice Department the final arbiter within the executive branch of what kind of agency activity under FOIA is acceptable.

In his 2009 FOIA memo, President Obama made clear his standards for appropriate compliance with FOIA. "Agencies should adopt a presumption in favor of disclosure," directed Obama, and "act promptly and in a spirit of cooperation." Obama's memo also tasked Attorney General Eric Holder, who heads the Justice Department, with issuing further guidelines to agencies. In those guidelines, Holder explained that the Justice Department would not defend an agency's action merely because it could be construed to fall within the technical confines of the law. Instead, the Justice Department would only side with an agency against the right of the public to access certain information if the agency reasonably foresaw that disclosing that information would cause actual harm. This bold move put the government on the side of openness, with the onus on the agency to justify the need for secrecy.

However, President Obama's FOIA goals have not yet been realized. The committee's letter notes that, according to the National Security Archive, the Justice Department "cannot point to a single case of agency withholding that it has refused to defend under the new guidance from the Obama and Holder memos in 2009." Furthermore, despite the department's pledge to take fewer cases to court and a 2007 law designed to allay FOIA litigation, in fact the opposite has occurred, with data showing increased FOIA lawsuits during the Obama administration.

In their letter, Issa and Cummings ask the Justice Department to explain these discrepancies. Particularly, the committee leaders ask what actions have been taken to enforce President Obama's stated commitment to openness and to avoid the need for FOIA litigation.

Conclusion

The congressional letter poses key questions that strike at the heart of how well the government is managing its duties under FOIA – and whether agencies will ensure that Americans can access public information without lengthy delays and court battles. Understanding what actions the Justice Department and agencies have taken will help clarify what can be done to strengthen transparency.

Agencies’ annual FOIA reports are being finalized and released, and the data should indicate how well agencies have performed in processing requests, disclosing information, and using exemptions to withhold records. However, the data never sufficiently reveals why agency performance has excelled or lagged in a particular year. Agency responses to this congressional inquiry may shed important light on those very reasons.