FOIA Getting ‘Flabby’ — As It Turns 40 on July 4th

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By: Mark Fitzgerald

Two hundred and thirty years after the Declaration of Independence, America is a remarkably youthful nation, its citizens among the most economically productive and creative in history, and its land a magnet for young people from every corner of the globe.

But the Fourth of July also marks the 40th birthday of the federal Freedom of Information Act (FOIA). And in contrast to the nation, this most important law is showing all the worst signs of middle age. It’s flabby and out of shape, insufficiently exercised — and slowing down dramatically.

FOIA’s decline is laid out in a new report (http://cjog.net/) from the invaluable Coalition of Journalists for Open Government (CJOG), a group of more than 30 organizations that has been raising the alarm about the rising tide of secrecy in government.

CJOG analyzed the FOIA requests made to federal agencies during the fiscal year ended Sept.30, 2005 — and found the government is getting slower and stingier about releasing information.

And in an administration that loves to cut spending everywhere but for the military, federal lawyers are spending ever greater amounts to resist giving the public information amassed in the public’s name.

In 1999, for instance, the U.S. Justice Department spent a little more than $1 million to litigate 410 cases, spending an average of $2,471 on each case. By last year, the number of cases had increased to just 436 — but total spending had ballooned to $7,110,971, or $16,310 per case.

Unfortunately, from a secrecy point of view, it was money well-spent. The feds are on a FOIA winning streak. Last year, requesters won just 14 cases that went to trial, the U.S. won 240.

And the government is saying no to requests more often, the coalition found. CJOG surveyed 22 federal agencies and found that they released all or part of the information requested 63% of the time, down from 67% in 2004.

The Bush White House changed the rules on FOIA in 2001 when then-Attorney General John Ashcroft reversed the Clinton administration presumption in favor of releasing requested information. Instead, Ashcroft recommended using the so-called “Exemption 2” and “Exemption 5” internal procedures to withhold information. Ashcroft may be long gone, but the use of Exemption 2 was up 37% just from 2004 to 2005, while the Exemption 5 catch-all increased 5%.

But mostly, the CJOG report shows, the federal government resists making public information public simply by sitting on them.

The number of unfulfilled requests at the end of fiscal 2005 was 148,603, a backlog of 31%. That’s a big increase from 2004’s 20% backlog — and comes despite a decline in the number of requests, the coalition found.

Some agencies were particularly woeful. The U.S. Securities and Exchange Commission (SEC), for instance, had a backlog of 131%. The median waiting time for “complex” SEC requests was 410 working days in fiscal 2005, double what it was the year before, CJOG found. (For a frame of reference, there are 261 federal working days in a year.)

Astonishingly, that’s kind of fast among federal bureaucrats. The Justice Department reported that its median response time for complex requests was 863 days. One Agriculture Department agency reported a median waiting time of 1,277 working days. And the National Archives reported a median waiting time of 1,631 days — six years in federal dogging-it age.

The Bush White House is hoping to distract the public from its problems with the current attack on the press. But when it stifles freedom of information, it’s attacking not journalists, but ordinary citizens, who make up the vast majority of FOIA requesters.

The government should remember that it’s not journalists looking to stir up trouble who are filing FOIA requests, it’s the guy looking to see what’s happening to his veteran benefits, the widow thinking she’s being short-changed by Social Security, the businessman suspicious of the goings-on with a company’s stock.

These Americans deserve a FOIA as vital as the nation itself.

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