Statement of Patrice McDermott, Ph.D., Information Policy Analyst, OMB Watch, before the Subcommittee on Government Management, Information and Technology of the House Committee on Government Reform on The Implementation of the Electronic Freedom of Information Amendments of 1996. Spoken Statement of Patrice McDermott, Ph.D. Information Policy Analyst OMB Watch Before the Subcommittee on Government Management, Information and Technology of the House Committee on Government Reform On The Implementation of the Electronic Freedom of Information Amendments of 1996 June 14, 2000 For those in the room who may not know who we are, OMB Watch is a nonprofit research and advocacy organization that works to encourage greater public participation in federal government decision-making and to promote a more open, responsive and accountable government. We have been engaged in the arena of public access to public information since the mid-1980s, and have issued a number of reports in this area. We appreciate the opportunity to testify. I am here today to talk about the report we issued in January of this year — "The People Armed?" Before I go into the details of our study and our recommendations, I want to note OMB Watch's belief that the implementation of E-FOIA in a way that is faithful to the intent of Congress is fundamental to effective electronic government and governance. It is essential that the public be able to understand how the government organizes itself and its records in order for the public to be able to truly hold government accountable. Because most government records, whether digitally created or not, are not online and searchable, the indexes and records locators required by the law are the only key for the public at this point. I also want to note, because this is a hearing about the use of technology to improve public access, that the public interest community is very concerned about recent and ongoing initiatives in both the executive branch and in Congress to hollow out the scope of the Freedom of Information Act by claiming, with no evidence ever presented, that online access changes everything and puts us all at terrible—if unspecified—risk. The very technology that promises more accountability is being raised as a specter to limit public knowledge about very real threats, risks, and vulnerabilities—most of which can and should be remedied. Over a three month period between September 1 and November 31, 1999, OMB Watch examined 144 unique federal government EFOIA web sites at the 64 agencies that are listed on the Department of Justice's FOIA site. There are many more agencies in the government—and they may or may not have complied with the requirements of the Amendments. There are, however, only 64 on the Justice site and we used these. In each case, we searched for the existence and completeness of the four major categories of information that, as you noted in your introduction, Mr. Chairman, are required under the 1996 EFOIA amendments. In all cases, we approached the web sites from the perspective of an average member of the public searching for information. We have done this report twice now because, as you have noted, the Administration has not been paying attention to the details. Mr. Chairman, you and Mr. Osee have identified many of the problems the public has with finding either FOIA sites—because there is no one way to find them across agencies—or, more specifically, government records. This study indicates that overall, agency compliance with the EFOIA amendments continues to be overwhelmingly inadequate. The four overriding reasons for this conclusion are:

• Congress still has not provided the necessary funding to carry out the implementation of the amendments.
• OMB still has not provided adequate guidance or assistance to agencies during the implementation process.
• The encouragement to compliance, which the legislators intended to be vested in the Department of Justice, has been insufficient. Justice has provided training and information on how to meet the requirements of the amendments, but this is clearly not sufficient given the overall inadequacy of compliance government-wide.
• Agencies have yet to make public access to government information, especially for accountability, a priority.

When we released the report, we had the four major Recommendations:

1. OMB must provide better guidance and support to agencies by: articulating exactly what information (as indicated in the amendments and the legislative history) must be included on agency web sites to be in compliance, and creating templates for consistent language and format government-wide; establishing a clear definition of what constitutes a repeatedly requested record; and most importantly, explaining how E-FOIA fits into the larger framework of federal information policy. OMB should follow what it has done in the area of privacy on agency web sites and provide leadership in the area of access. In regard to this Recommendation, we commend OMB for finally recognizing, in its April 2000 proposed revisions to Circular A-130, the significant problems with its Memorandum M-98-09, which told agencies that a "GILS presence" was sufficient to comply with the law. Because, as we have reported, OMB has been dilatory in its treatment of the GILS mandate in the 1995 Paperwork Reduction Act, most agencies have no—or no useful—GILS presence. Thus, following OMB's recommendation on this matter put some agencies out of compliance with the statute.
2. Agencies' information must be better organized to make locating records online a user-friendly experience.
3. Enforcement mechanisms for agency non-compliance must be established immediately. Currently, agencies that do not meet the requirements outlined in the E-FOIA amendments are neither identified nor penalized for non-compliance.
4. Congress must provide regular oversight. Since the passage, there has been only one hearing on the implementation, yours, Mr. Chairman.

We also had five lesser recommendations:

1. Agencies with decentralized responsibility for E-FOIA implementation must provide a procedure for the implementation in order to ensure consistency.
2. Agencies must make categories of E-FOIA compliance — handbooks, indexes, repeatedly requested records — easily identifiable online and linked from one spot.
3. All agencies should follow the lead of those that provide forms for submitting FOIA requests online.
4. All agencies should provide access to their information in text-only as well as graphics versions for users without access to high-tech equipment.
5. The goal of E-FOIA, and here we agree with OMB, should be to make so much information publicly available online that Freedom of Information Act requests become an avenue of last resort.

Thank you. I will be happy to answer any questions that you might have.