Unfree Information

FOIA reforms fall flat under ‘most transparent admin in history’

December 5, 2012

The vast majority of federal agencies have not updated their Freedom of Information Act (FOIA) regulations despite pledges by the Obama administration to be the most transparent in history, the National Security Archive reported Tuesday.

According to the National Security Archive’s audit, 62 of 99 government agencies have not updated their FOIA regulations since Attorney General Eric Holder directed them in a March 2009 FOIA memorandum to remove "unnecessary bureaucratic hurdles" to obtaining public records and err on the side of transparency.

Additionally, 56 agencies have not updated their FOIA regulations since the passage of the OPEN Government Act of 2007, which mandated agencies retool their FOIA offices, including fee structures and reporting.

The Federal Trade Commission has not updated its FOIA regulations since 1975.

Tuesday’s audit is the third such report from the National Security Archive. Despite President Barack Obama’s lofty rhetoric on transparency, the results have been "extremely mixed—at best."

"This is a good opportunity for a second-term Obama administration to hammer home the importance of FOIA compliance," said Laura Harper, a research associate at the National Security Archive.

Lawmakers on both sides of the aisle pointed to the report as evidence of the need for FOIA reforms. House Oversight and Government Reform Chairman Darrell Issa (R., Calif.) called the report "disappointing."

"The Department of Justice is supposed to enforce FOIA compliance, but incredibly they have not updated their own regulations since 2003," Issa said in a statement to the Washington Free Beacon. "If the President is serious about improving his record on transparency in the second term, he's going to have to ask his agency heads to pay attention to the law, as well as his own executive orders."

Sens. Patrick Leahy (D., Vt.) and John Cornyn (R., Tex.), who crafted the OPEN Government Act of 2007 that 56 federal agencies are currently ignoring, both released statements Tuesday criticizing federal agencies’ sluggish performance.

"The audit released today by the National Security Archive makes clear that the overwhelming majority of federal agencies are neither fulfilling the President's promise of an open and transparent government for the American people, nor complying with the vital reforms to the FOIA process that Congress demanded by enacting the Leahy-Cornyn OPEN Government Act," Leahy said.

"When President Obama took office, he pledged that his administration would be the most transparent in history," Cornyn said in a separate statement. "This report reveals how hollow that pledge was, and can be added to the long list of broken promises from his Administration."

The National Security Archives, a nonprofit research and archival organization that collects declassified government information, recommended that Obama appoint a "transparency czar" to oversee FOIA compliance and to establish uniform standards for how agencies post FOIA rules on their websites.

"One of the things that struck me was how difficult it was to find the various agency’s FOIA regulations on their websites," Harper said. "It would be great if there was not only standardized best practices, but also consistency in how the agencies post regulations."

On his first full day in office, Obama issued a memo on freedom of information, telling agencies: "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails."

The failure of the Obama administration to follow through on its promise of unprecedented transparency has been a disappointment to many media outlets and open-government advocacy groups.

The Washington Post reported several government watchdog organizations met Monday and lamented the lack of progress under the Obama administration.

Steven Aftergood, who runs the Federation of American Scientists’ Project on Government Secrecy, said, "Overall secrecy has actually increased rather than declined" by some measures.

"Criminalization of unauthorized disclosures of information to the press has risen sharply, becoming a preferred tactic," Aftergood said. "Efforts to promote public accountability in controversial aspects of counterterrorism policy such as targeted killing have been blocked by threadbare, hardly credible national security secrecy claims."

A Bloomberg investigation found "19 of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information."

"In all, just 8 of the 57 federal agencies met Bloomberg’s request for those documents within the 20-day window required by the Act," the news organization reported in September.

An August Washington Post analysis found that early freedom of information progress by the Obama administration "stalled and, in the case of most departments, reversed in direction."

The number of FOIA requests denied in full due to exemptions rose more than 10 percent last year, to 25,636 from 22,834 the previous year, according to the Post’s analysis.

"Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it," Katherine Meyer, a Washington lawyer who’s been filing FOIA cases since 1978, told Politico in March. "This administration is raising one barrier after another. … It’s gotten to the point where I’m stunned—I’m really stunned."

The White House did not respond to a request for comment.