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