Shortcomings in Transparency Performance Point to the Need for Reforms of Freedom of Information Act

by Gavin Baker, 4/9/2013

The Center for Effective Government's recent analysis, Freedom of Information Act Performance, 2012: Agencies Are Processing More Requests but Redacting More Often, highlighted some troubling trends in agencies' performance in providing information to the public under the Freedom of Information Act (FOIA) and found wide disparities among agencies. These shortcomings show that legislation will be needed to repair the current weaknesses in the FOIA system.

One bill is already moving through the House. On March 20, the House Oversight and Government Reform Committee approved the FOIA Oversight and Implementation Act (H.R. 1211), which includes several provisions that would make FOIA easier for requesters to use and require more consistency in agency responses. However, in its current form, the bill would make little progress in improving the problems identified in our latest FOIA performance analysis.

Findings from the Analysis

Requests Rose, but Processing Increased and Backlogs Fell

After a steady decrease in the number of requests for public information during the George W. Bush era, the 25 agencies covered in the analysis began to receive more FOIA requests during the first term of the Obama administration. In fiscal year 2012, agencies received 11,000 more requests than in the previous year but were able to process 39,000 more requests. The fact that agency processing is catching up to demand is a positive indication of agencies' capacity to meet the law's requirements. However, most major agencies are still not in full compliance, as discussed below.

The number of unprocessed, or pending, requests has generally been falling since 2006, and in the last year alone, the number of pending requests was reduced by 12 percent. Most of this progress was due to one agency: the Department of Homeland Security (DHS). DHS receives far more requests than the other federal agencies examined in our analysis and reduced its pending requests by 30 percent.

Overall, the Obama administration has made an intentional effort to reduce backlogs: at the end of 2009, President Obama ordered the heads of federal agencies to reduce their backlogs of FOIA requests by 10 percent per year. However, out of 11 agencies that had 500 or more backlogged requests, only two met the reduction goal each year: the Departments of the Interior and the Treasury. Two agencies, the Central Intelligence Agency and the National Archives and Records Administration, failed to meet the backlog reduction goal in all three years.

Yet the House bill that passed out of committee, H.R. 1211, would do little to directly address the issue of backlogs. Stiffening the penalties for agency non-compliance and encouraging agencies to develop robust plans for managing their FOIA requests are required.

Fewer Releases Include All the Information Requested

The practice of “redacting” information (not releasing all of the information requested) has been increasing since George W. Bush took office. President Obama has failed to halt this trend. In fact, the proportion of fully granted requests fell in 2012 to the lowest level on record – just under 41 percent of FOIA requests processed provided full and complete information to the requester.

Partial FOIA Releases over Time
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Unfortunately, H.R. 1211 would not do much to directly address this, and without more information, we don’t know how serious this problem is. Available data do not indicate the extent of withholding under partial releases, so it is not possible to know whether agencies are redacting small amounts of sensitive information or withholding dozens of documents per request. Congress should require reporting of the quantity of records released as a way to permit fuller analysis and oversight of the issue of partial releases.

Federal Agencies Are Using Exemptions to Deny More Requests

In 2012, agencies used exemptions to withhold information markedly more often than in 2011. This increase occurred despite the fact that the use of the internal rules exemption, once among the most highly-used exemptions, was almost entirely eliminated after a 2011 U.S. Supreme Court decision that limited the applicability of this exemption. However, a significant increase in the use of the interagency memos exemption suggests that some agencies may have been using it to withhold records that had previously been claimed as internal rules. The exemption on internal and interagency information allow agencies to claim that disclosing information would negatively impact how government functions and how agencies interact with each other; the safety or rights of American citizens are not directly at stake if such information is released. Several other exemptions were also claimed more often in 2012 than in the previous year.

H.R. 1211 would partially address this issue by prohibiting an agency from withholding information unless it can show “foreseeable harm” resulting from release of the information. This would roughly codify a similar standard found in Attorney General Eric Holder's FOIA guidelines.

Instituting tighter standards for withholding would be an important step in the right direction and would follow emerging international norms for access to information laws.

However, it is difficult to know how effective the provision would be as currently written because the bill does not explain how the foreseeable harm standard for withholding should be applied. Without more details, it is not clear how the provision would affect agency procedures or judges' decisions. Congress should make clear that the burden should fall squarely on agencies to show that harm would result from disclosure and that judges should be able to review these decisions.

Congress should also address the interagency information exemption (Exemption 5) in particular, given its tremendous growth and its discretionary nature. Congress could require agencies to consider the public interest in releasing the information, rather than only the potential harm to governmental functions. In addition, Congress could limit the length of time that agencies can claim this exemption, comparable to provisions under the Presidential Records Act that allow a former president to restrict access to his or her records for only 12 years after leaving office.

Moving Toward Stronger Disclosure

Reps. Darrell Issa (R-CA) and Elijah Cummings (D-MD), the sponsors of H.R. 1211, have taken the lead on fixing the FOIA system and have shown their willingness to work toward constructive reforms to increase transparency. As the legislation moves to the floor of the House and on to the Senate, there will be opportunities to improve its limitations. We would also like to see open government advocates in the White House work to ensure the bill gets better as it moves through congressional negotiations. Effective improvements in FOIA would be a fitting legacy for a president who wants to be the most transparent in history.