Despite changes in political power and public trust in government and a technological revolution that in many ways changed how people expect to get information, the basic framework of the US Freedom of Information Act (FOIA) has withstood the test of time. The hallmarks of the US FOIA are a presumption of the public’s right to records of government and the ability of requesters to challenge the government’s decision to withhold information. Because the law is based on the premise that people have a right to information about what the government is doing and why, an agency must rely on one of the law’s nine exemptions in order to withhold requested information from the public. The US FOIA’s 9 Exemptions permitting or requiring non-disclosure of records cover:
1) properly classified information; 2) agency management records; 3) information barred from disclosure by another law; 4) trade secrets or other confidential business information; 5) inter- and intra- agency information protected by legal privileges; 6) information that, if disclosed, would invade another individual’s privacy; 7) information compiled for law enforcement; 8) federal government records of banks and other regulated financial institutions; and 9) information about the location of oil and gas wells of private companies.
A requester who believes that an agency has inappropriately used exemptions to withhold information has a statutory right to file an administrative appeal to the agency. If a requester is unsatisfied after the appeals process, or if the government does not meets its statutory obligation to respond to a request in a timely matter, the requester can take the government to court, where the burden is on the government to come forward and justify the withholding of the information.
The law’s structure does suffer some weaknesses. First, while it gives requesters opportunities to question the government’s decision to withhold information, the burden for filing an appeal or a lawsuit falls on the requester. Another problem is that the law’s Exemption 3 allows Congress, by putting language in other statutes, to grant an agency authority to withhold new categories of information without ever actually amending FOIA. The US Congress can, and often does, this by tucking such provisions into large bills. Because the provision does not statutorily amend FOIA, Congressional Committees with jurisdiction over the Act and with expertise in the public’s right to know often do not review the legislation before it is voted on, and sometimes these new authorities are signed into law before anyone even knows they exist. Although there is no perfect count of how many of “other laws” allow the government to withhold information, a report in March 2011 by the Sunshine in Government Initiative, a coalition of media groups, shows the extent of the problem: according to data the group compiled, agencies cited provisions in more than 240 other laws to withhold information over the last decade.
The execution of the US law is another issue confronting requesters. Long delays in response and a lack of transparency about what the government is doing with a request once it is submitted lead to a system that doesn’t work for a lot of people — certainly not journalists and academics who are on deadline and not for people who in the age of Google expect immediate access to information. Although agency backlogs have been reduced in recent years, most people will have to wait for some period of time before an agency even begins processing their requests. Once a FOIA request is in the system, there is no way currently a person can tell how long it may be before he or she gets a response – let alone records.
One reason the US’s FOIA processing system fails to keep up with demand is the lack of continuous effective oversight. The Office of Information Policy (OIP) at the Department of Justice monitors agency compliance with the FOIA, but uses the compliance information it collects to provide agencies with guidance on how to improve its practices, not demand an agency make any changes. In Congress, FOIA competes for attention with a vast number of issues. The Congressional Committees responsible for FOIA oversight also are responsible for other a number of substantive issue areas.
To counter growing backlogs and continued frustration with the FOIA system, Congress proposed the OPEN Government Act of 2007 to make FOIA processes more efficient. The act was championed by members of both parties and was passed by both chambers with wide-spread support, despite a lack of support for the law from the Bush Administration.
Among other changes, the OPEN Government Act borrowed an innovation from several US states and foreign systems: a mediator to handle disputes between requesters and the government. The US version of the mediator, the Office of Government Information Services (OGIS), is charged with helping solve disputes and with suggesting improvements to FOIA. OGIS could reduce costs by, among other things, keeping cases out of the court system and helping make sure Congress and the Administration are more aware of what problems in the FOIA system need immediate attention.
In order to be successful, however, OGIS needs additional authority. Currently OGIS must rely on the goodwill of an agency to enter into mediation and has no power to make an agency turn over records. OGIS also needs better support from the Administration. OGIS’ first round of recommendations have been pending review by the President’s Office of Management and Budget (OMB) for over a year. The Administration needs to move forward to review OGIS’ recommendations, so they can be sent forward to Congress. Each branch then needs to act on the recommendations to improve.
Amy Bennett is the Assistant Director of OpenTheGovernment.org, where she works extensively on the organisation’s coalition partner outreach and on policy issues, including improving public access to government information and increasing openness and accountability of the federal government. Prior to joining the coalition, she earned a Master in Public Policy from the Georgetown Public Policy Institute (GPPI). Amy has previous experience working for a small start-up non-profit, as a lobbyist for government relations firms, and as an aide for Congresswoman Jan Schakowsky (D-IL).