Exemption 10

How's government doing on FOIA? Depends on whom you ask

Posted: March 16, 2011 | Tags: FOIA, Freedom of Information, John Podesta, Judicial Watch, Sarah Cohen, Senate Judiciary Committee, Sunshine Week

Someone once said that the two most important words in the English language are: “It depends.”

And at a Senate Judiciary Committee hearing Tuesday on the Freedom of Information Act it was clear that how the government is doing on FOIA depends on who is answering the question. (See hearing testimony here.)

“Agencies have made real progress in applying the presumption of openness, improving the efficiency of their FOIA processes, reducing their backlogs of pending FOIA requests, expanding their use of technology, and making more information available proactively,” Melanie Pustay, head of the Justice Department’s Office of Information Policy, testified.

In her job, Pustay is, in effect, the top FOIA officer in the federal government.

She pointed to new postings by the Agriculture Department that reduced the need for FOIA requests and online documents relating to the Upper Big Branch mine disaster and the BP oil spill as evidence of this progress. She also cited the new Justice Department site, foia.gov, as evidence of the government's attempts to make the FOIA process more transparent.

But other witnesses were much less charitable.

Thomas Fitton, president of Judicial Watch, said flatly: “The American people were promised a new era of transparency with the Obama administration.  Unfortunately, this promise has not been kept. To be clear:  the Obama administration is less transparent that the Bush administration.”

In recent years, Judicial Watch has made a name for itself fighting for access to government records. (After the terror attacks of Sept. 11, 2001, the Bush Justice Department refused to give Judicial Watch FBI records on Osama Bin Laden, citing his right to privacy.)

Since President Obama took office Fitton said the conservative nonprofit group has filed 325 FOIA requests and sued the government 44 times. One of its most prominent current cases is an attempt to get information about the political contributions made by failed mortgage giants Fannie Mae and Freddie Mac.

John Podesta, who might be more inclined to support the Obama administration considering that he served as head of the transition team, said the administration, which announced its determination to be more open on its first day in office, has “the right policy.” But he said there remain serious problems with implementation of the policy.

Podesta, now president of the Center for American Progress, suggested three ways to help improve disclosure:

    * Require automatic Internet disclosure for most information.
    * Build a searchable online database where the public can track FOIA requests and
      view agency responses.
    * Improve the quality of information used to assess FOIA implementation.

Sarah Cohen, a former reporter for The Washington Post and now a professor at Duke University, told the committee that she thinks some administration efforts have been helpful, but they don’t address key problems facing journalists – among them, the time required to process FOIA requests.

In her time as a reporter, Cohen said she “never received a final response to a FOIA within the required time frame.”

Particularly troubling, she said, are the delays brought about because agencies are often required to ask companies whether and what kinds of information can be released.

Cohen testified: “One consistent and growing source of delay has been the requirement to vet potential trade secrets and other confidential information contained in contracts, grant proposals and other federal documents such as airplane certifications. Agencies must send the documents back to the originator and provide an opportunity for them to strike confidential portions. The records are then held hostage to the priorities of the subject of the FOIA, who is permitted to request — and usually receives — b(4) exemptions. Reporters say that agency officials do not adequately challenge claims of harmful disclosures or demand timely response.”

She was referring to Exemption 4 of the 1966 Freedom of Information Act, which allows agencies to withhold "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential."

One of the cases she cited is actually from the Investigative Reporting Workshop, which has been trying — so far unsuccessfully — to get applications of companies seeking renewable energy grants made under the stimulus program. We will write about this case in more depth in the coming weeks.

The hearing coincided with the annual Sunshine Week observance, begun a few years ago by the American Society of News Editors to spotlight FOIA and other open government initiatives. The House Committee on Government Oversight and Reform will hold a similar hearing Thursday.

Valerie Wexler of the Investigative Reporting Workshop staff contributed to this post.




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