Mixed Results for the Obama Administration on Freedom of Information
Sunshine Week, the annual nationwide celebration of transparency in government, prompted numerous analyses of the Obama administration’s progress on improving its responsiveness in processing Freedom of Information Act (FOIA) requests. Through its own analysis, OMB Watch found the administration has continued to make progress overall, but agency-by-agency results have been mixed.
Congress passed FOIA in 1966, creating one of the public’s most powerful tools for obtaining critical information from the federal government. FOIA provides citizens a legal right to obtain records held by government agencies and has been an integral part in ensuring that the American people can access information of public concern. However, despite the importance of FOIA, complaints about slow processing are endemic, and citizens often find the process burdensome, confusing, and slow.
OMB Watch Analysis
On March 14, OMB Watch released an analysis of the government's fiscal year (FY) 2011 performance on FOIA implementation, based on federal agency annual reports under the act. The analysis, entitled Strides and Stumbles: Mixed Results for the Obama Administration on Freedom of Information, found that several transparency indicators have improved.
In fact, agencies processed six percent more requests in 2011 than 2010, bringing the number of FOIA requests processed to the highest level since 2005. The percentage of requests denied based on exemptions declined by seven percent, bringing exemption use to its lowest level since 2008. In addition, use of the most discretionary exemptions – exemptions 2 (internal agency rules) and 5 (interagency memos) – decreased sharply, largely due to decreases at the Department of Homeland Security.
Nevertheless, the surge in FOIA requests outpaced the administration's increase in processing, leaving more requests unprocessed at the end of 2011 than in 2010. Still, unprocessed requests are at their lowest level overall since 2003.
The Department of Homeland Security (DHS) is responsible for most of these trends. DHS received more requests than any other federal agency (36 percent of the total), and the number of requests it received increased by 35 percent. DHS was unable to cope with the increase, causing its backlog to more than double.
The Obama administration's combined average for granting requests in full or in part (95 percent) remains higher than the average of the Clinton administration (89 percent) and the Bush administration (93 percent). However, the Obama administration’s performance relies more heavily on partial releases than the previous administrations.
The OMB Watch analysis was based on annual FOIA reports filed by federal agencies with the Department of Justice. The analysis covers 25 federal agencies, including most cabinet-level departments.
Other FOIA Analyses
The Associated Press released its analysis of the 2011 federal agency FOIA reports for 37 of the largest federal departments and agencies, with similar findings. The Associated Press also concluded the administration made progress but was unable to keep pace with the increasing number of FOIA requests and thus "still fell further behind with backlogs, due mostly to surges in immigration records requested from the DHS."
On March 15, the House Oversight and Government Reform Committee, chaired by Rep. Darrell Issa (R-CA), released a report card indicating that many federal agencies have failed to track basic information in response to FOIA requests. The committee gave the administration an overall grade of C-minus for its efforts to track and manage FOIA requests. The congressional report, released a day after OMB Watch released its FOIA analysis, is based on requests for FOIA logs at 100 different agencies.
According to the House report card, 62 of the 100 agencies surveyed provided all necessary information in their FOIA logs, while the remaining 38 were vague or lacked critical information, such as status, subject matter, or tracking numbers. The departments that received the most FOIA requests – Homeland Security, Defense, and Justice – lacked critical information from their FOIA tracking logs; the most complete tracking logs were provided by the departments of Education, Energy, Labor, and Transportation.
Of all the federal agencies reviewed, the Department of Justice (DOJ) received the harshest criticism during Sunshine Week. Though last week marked the first-year anniversary of DOJ’s website, FOIA.gov, which contains FOIA data for all agencies, the DOJ won the "infamous" Rosemary Award for worst open government performance over the past year. (The Rosemary Award is named after President Nixon's secretary, Rose Mary Woods, who erased about 18 minutes of a crucial Watergate tape; it is awarded by the National Security Archive.)
In selecting the DOJ, the National Security Archive cited the agency’s continued use of abusive prosecutions and espionage laws against whistleblowers as "leakers" of classified information; the agency’s legal arguments to justify greater secrecy throughout DOJ's litigation posture; and proposed regulations that would allow the government to lie in court about the existence of records requested by the public.
"The Department of Justice – which is responsible for enforcing FOIA government-wide – was supposed to be the change agent and role model for President Obama's FOIA reforms," said Nate Jones, the Archive's Freedom of Information Act Coordinator. "But, despite the president's clear instructions, the DOJ has embraced a 'FOIA-as-usual mindset' that has failed to transform the decades-old FOIA policies within its department, much less throughout the government."
Reaction and Next Steps
"After the Bush administration wrought havoc on the FOIA system, the Obama administration is still rebuilding," said Sean Moulton, Director of Federal Information Policy at OMB Watch. "We're glad to see generally increased openness, but more work needs to be done to usher in the type of government openness and transparency that the American people want and deserve."
On March 21, Moulton will be testifying at a House Oversight and Government Reform hearing on use of technology to improve FOIA processing.