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Agencies missing FOIA deadlines, AP finds

By The Associated Press
03.13.06

  • Sunshine Week '06 at a glance
  • Many federal agencies fall far short of the requirements of the Freedom of Information Act, repeatedly failing to meet reporting deadlines while citizens wait ever longer for documents, an Associated Press review has found.

    Requests for information ranging from historical records to federal contracts usually take months and sometimes take years to be filled. Most departments missed the Feb. 1 deadline to send legally required annual reports to the Justice Department (and many still haven't been submitted). And the Justice Department hasn't produced an annual summary of FOIA reports for two years.

    The review was conducted as part of Sunshine Week, in recognition of the public's right to know about government activities.

    "Federal FOIA is the water torture. It's just drip, drip, drip. You wait and you wait and you wait," said Charles Davis, who heads the National FOI Coalition.

    The Freedom of Information Act, signed 40 years ago by President Lyndon Johnson, dictates that federal records must be shared with the public unless they involve national security or private information about an individual or business.

    Johnson's statement at the signing — "A democracy works best when the people have all the information that the security of the Nation permits" — has been echoed repeatedly by lawmakers in both parties in recent years, who have updated the law periodically with deadlines and restrictions to prompt quicker responses.

    But an Associated Press analysis of about 250 annual FOIA reports submitted to the Justice Department between 1998 and 2005 found that:

  • Backlogs are increasing at most agencies. Overall, the total number of requests pending at the 15 executive departments at the end of Fiscal Year 2004 was 147,810, a 24% increase over the previous year. Nine of the 15 federal departments reported an increase in their backlogs from Fiscal Year 2003 to Fiscal Year 2004.

  • Many backlogs are lengthy. The most recent reports available from the 50 worst laggards show the median wait for a request to be handled ranges from about three months to more than four years, depending on the agency. The slowest federal agency is the National Archives, where officers explained most of their requests, pending for an average of 1,631 days, have to be reviewed by the originating agency for declassification before they can be released.

  • Agencies involved with national security are clamping down on the amount of information they release to the public. The FBI, CIA and Defense departments, all agencies that have considerable investigative branches, again reduced the percentage of requested information released in full in 2005, continuing a trend dating back at least seven years. The Justice Department, however, showed a slight increase in the amount of information it released in full for the first time since the 2001 terror attacks.

  • A full month after the Feb. 1 deadline, about 30% of federal agencies and departments required to submit annual FOIA reports to the Justice Department had failed to do so. Those with late reports included the Department of Veterans Affairs, the Social Security Administration and the Department of Health and Human Services which, all together, received about 88% of all FOIA requests in the country in 2004.

    Paul McMasters, ombudsman of the nonpartisan First Amendment Center and one of the nation's leading authorities on freedom-of-information issues, said Congress tried to remedy the lagging response times in 1996 by extending the amount of time agencies have to respond, from 10 to 20 days.

    He said that remedy seems to have backfired, prompting agencies simply to delay even longer. In addition, because there are no consequences for missing FOIA deadlines, McMasters said few FOIA directors seem to take the legal requirements seriously.

    "There is absolutely no incentive for federal government employees to act with any sense of urgency on FOIA requests, and there is every sort of incentive to delay and delay," he said. "Those incentives are a culture of secrecy that has always existed in government, from 40 years ago when FOIA was passed to the present time."

    FOIA does not require agencies to release information within a certain amount of time. The law does, however, mandate that agencies respond to requests in some way within 20 days. These responses often come in the form of a postcard acknowledging that a request has been received.

    Actual processing often takes much longer. The most recent figures available show that a third of Cabinet departments had at least one agency where requests were pending for more than a year.

    Even requests that are stamped "expedited" based on an exceptional need or urgency can lag for many months. The Justice Department's Office of Information and Privacy, which is in charge of administering FOIA across the federal government, kept an expedited request pending for 185 days last year.

    Daniel Metcalfe, who directs the Justice Department's Office of Information and Privacy, said that when a request is expedited it heads to the front of the line. But complicated requests can take a long time to complete, he said.

    "Even though the agency is trying its hardest to process the request as soon as practicable, it could take a long time because of the scope, volume or complexity of what is being sought."

    Congress introduced the "Faster FOIA Act" last spring, and President George W. Bush issued an executive order in December, calling on agencies to take several consumer-friendly steps. Among them: streamlining the handling of requests under the FOIA and appointing senior officials to monitor compliance with the law.

    To date all 15 cabinet level agencies have appointed chief FOIA officers as required, although only seven of those agencies appear to meet Bush's specific requirement that these appointees be "at the Assistant Secretary or equivalent level."

    Bush also ordered agencies to streamline the handling of requests under the FOIA and appoint senior officials to monitor compliance with the law.

    But Bush's directive stopped short of modifying a 2001 policy issued by then-Attorney General John Ashcroft requiring agencies to carefully consider national security, effective law enforcement and personal privacy before releasing information. Ashcroft cited security concerns in the wake of the Sept. 11 attacks as the reason for the changes to open-government laws.

    "The Bush-Cheney administration sent a powerful message government-wide with the Ashcroft FOIA policy in 2001," said Sen. Patrick Leahy, D-Vt., a leading FOIA reform advocate who has several bills pending in Congress to modify the law.

    "That shifted the upper hand in FOIA requests from the public to federal agencies. The new policy says, in effect, 'When in doubt, don't disclose, and the Justice Department will support your denials in court.' It undermines FOIA's purpose, which is to facilitate the public's right to know the facts, not the government's ability to hide them," he said.

    His colleague, Sen. John Cornyn, R-Texas, said "more remains to be done to ensure that American citizens have access to the information they need and deserve."

    Cornyn is pressing for additional funding to address backlogs, which he said will "speed the rate at which information is given to the public."

    In its review, the AP found that in 2005, in addition to increasing backlogs, many agencies decreased the amount of information they were willing to release in full. FBI authorities gave just six out of every 1,000 FOI applicants everything they asked for, down from 50 out of every 1,000 in 1998. The CIA has seen a similar, steady decline: Just 11% of the FOIA requests processed at the CIA were granted in total in 2004, down from 44% in 1998.

    Washington-based attorney Scott A. Hodes, who led the FBI's Freedom of Information litigation unit from 1998 to 2002, said there was an institution-wide inclination to avoid complying with the law.

    "It doesn't surprise me that most responses are late, and that they tend to deny a lot. Even though your higher-level administration officials will say they like FOIA, there's a general dislike of FOIA," he said.


  • Related

    Cornyn expects fight on FOIA reforms

    Senator tells Texas press group that bill to put teeth in 1966 federal sunshine law could face uphill battle in Congress. 03.31.05

    FOI advocates troubled by bill cloaking federal agency
    Critics call on Senate to amend legislation that creates special vaccine agency, exempts it from open-government laws. 12.04.05

    States clamp down on public access to info
    AP analysis: Since 2001 attacks, states have passed more than twice as many laws that restrict data as measures that loosen access. 03.12.06

    Polls find concern about official secrecy
    But Americans somewhat conflicted over when information should be kept from public. 03.15.06

    Cornyn says government should fulfill records requests faster
    'This is legislation that benefits all of the American people and is absolutely critical to our form of government,' senator tells Texas press group. 03.22.06

    40 years ago, FOIA vexed President Johnson
    Decades after its signing, Freedom of Information Act still creates tension between the government and citizens, corporations, researchers and journalists. 07.05.06

    Government slower under open-records law
    But congressional study also finds federal agencies provide fully responsive documents to FOIA requests 87% of the time. 07.27.06

    AP CEO discusses Sunshine Week 2006
    Tom Curley in Q&A about press efforts to make government more open, accountable to public. 03.14.06

    When truth is in short supply, democracy is in danger
    By Paul K. McMasters FOI-request delays, growing cult of government secrecy threatens our ability to have a say in how we are governed. 09.10.06

    Sunshine Week '06 at a glance

    How to file an FOIA request

    News summary page
    View the latest news stories throughout the First Amendment Center Online.

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