Dealing With The FoI Crunch p.14

By: DEBRA GERSH HERNANDEZ TWO BILLS POISED to take the floor in the House and Senate would extend the Freedom of Information Act to cover electronic records.
Although EFoIA bills have been put forward ? and died ? in the Senate since 1991, this is the first time such legislation has been introduced in the House and passed through committee.
The two bills are nearly identical, leading supporters to believe that EFoIA legislation could be passed this year, the 30th anniversary of the enactment of the original act.
The Freedom of Information Act was signed on July 4, 1966 by President Lyndon B. Johnson. Federal departments and agencies reportedly now receive more than 600,000 FoIA requests a year.
The act was amended in 1974 by the Privacy Act, which set the rules for access to information held by the government about individuals.
The EFoIA bill in the Senate, S.1090, was co-sponsored by Sen. Patrick Leahy (D-Vt.), a longtime proponent of such legislation, and Sen. Hank Brown (R-Colo.). As Congress took its August recess, the bill was awaiting action on the Senate floor.
Access to federal agency records, on disc or on paper, "is not a partisan issue, it is a good government one," Leahy told the House Committee on Government Reform and Oversight's Subcommittee on Government Management, Information and Technology during two days of hearings on FoIA and EFoIA.
Technology "has dramatically altered the way government handles and stores information" since FoIA was passed 30 years ago, he added.
"We need to update the FoIA to address new issues related to agency reliance on computers," Leahy said. "We need to make clear that the FoIA is not just a right to know what's on paper records, but that it applies equally to electronic records."
The Senate EFoIA bill, Leahy explained, "requires agencies to provide records in a requested format, whenever possible," leaving the format choice to the requester, not the agency, when feasible.
Further, the bill "would also force agencies to assess how new computer systems will enhance agency FoIA operations before systems are installed that impede access," Leahy said.
The bill also "would encourage agencies to increase online access to government information, including the records agencies currently put in their public reading rooms," he continued.
And, it "would address the biggest single complaint of people making FoIA requests: delays in getting a response," Leahy noted, adding that in some agencies, "delays can stretch to over two years. Long delays in access can mean no access at all."
Calling the current time limits proscribed by FoIA "a joke," Leahy commented that, "Such routine failure to comply with the statutory time limits is bad for morale in the agencies and breeds contempt by citizens who expect government officials to abide by, not routinely break, the law."
By doubling the time period for responding to FoIA requests from 10 to 20 days, and by encouraging agencies to put more information online and use more efficient record management techniques, Leahy pointed out that his bill would help agency personnel comply with those time limits.
The House bill, H.R. 3802, Electronic Freedom of Information Amendments of 1996, was introduced by Rep. Randy Tate (R-Wash.).
It includes provisions for multitrack processing and expedited handling in certain cases of compelling urgency, as well as requiring agencies to make a reasonable effort to provide information in the format desired by the requester.
"In the 30 years since the implementation of the original Freedom of Information Act, our nation has witnessed enormous technological advances," Tate commented when introducing the bill.
"The Electronic Freedom of Information Amendments of 1996 (EFoIA) makes it clear that FoIA applies to government records in any form, including electronic records, while increasing online access to government information," he explained.
The full committee passed the bill with an amendment from Rep. Carolyn Maloney (D-N.Y.) calling for each agency to submit annual reports detailing how many requests for records were received, how many were denied and appealed, the backlog of pending requests, how long it took to handle requests, and the like. The bill also is awaiting action on the floor.
During the House subcommittee hearings, members heard from legislators, federal agency staffers, journalists, lawyers and others who deal with FoIA regularly, either as requesters or processors.
Since 1993, the Department of Justice has been working under modified rules from Attorney General Janet Reno that are designed to expedite the handling of FoIA requests, commented Roslyn A. Mazer, deputy assistant attorney general in the DoJ's Office of Policy Development.
Nevertheless, the FBI, despite "a significant commitment of people and resources to process requests for information," is unable "to process requests in as timely a manner as we would like," commented J. Kevin O'Brien, chief of the Freedom of Information and Privacy Acts Section of the FBI.
According to O'Brien, the FBI spent $21,082,010 in 1995 on its Freedom of Information and Privacy Act Program (FoIPA), which employs 263 people full time in Washington, another 11 in Savannah, Ga., and 74 full- and part-time analysts in field offices.
As of May 31, the FBI's FoIPA section had 15,259 requests in its backlog, with an estimated 5.4 million pages of documents to be reviewed, O'Brien reported.
Of those 15,259 requests, about 2,000 average 100 pages or less and are not complex, and there were about 248 "project" cases, which are 3,000 or more pages, he said.
Nearly three-quarters of requesters in 1995 were private individuals (74.6%), with the rest made up of prisoners (14.7%), scholars and historians (4.1%), news media (2.8%), freelance writers and authors (2.4%), organizations (0.8%) and current employees (0.6%).
O'Brien chalked up the backlog to the continual high-volume stream of new requests, which has averaged 13,100 a year in each of the past five fiscal years, and to the "complex processing decisions, which are time-consuming."
Further, he said, as of May 31, there were 480 FoIA requests on appeal, with 233 pending FoIPA lawsuits covering 641 requests, which also takes time from analysts.
Other diversions of analysts' time include assignments to special projects, such as processing files from the John F. Kennedy assassination, and new rules stemming from a 1993 Supreme Court decision regarding confidential FBI sources.
To try and speed the process up, the FBI uses a two-track system for processing, allowing smaller requests to be processed more quickly, rather than keeping all requests in one queue, O'Brien explained, adding that the bureau also has streamlined the process overall.
"It is clear, however, that only more analysts, trained to process requests, can significantly diminish the backlog, absent an unexpected decrease in new requests," O'Brien told the subcommittee. "The FBI is seeking additional personnel resources through the budget process, and a request for 129 additional personnel to process FoIPA requests is now pending before the Congress.
At the Department of Defense, 107,486 FoIA requests were received in 1994 and 103,347 came in the following year, reported Anthony H. Passarella, director of the Directorate for Freedom of Information and Security Review in the Office of the Assistant Secretary of Defense/Public Affairs.
"While the numbers of requests have decreased over the past two years, the sophistication of the requests has increased and are for larger numbers of records. These factors have made the process more difficult," Passarella explained.
While improving the problem is a difficult task, Passarella said that, "The DoD will have to explore more ways to capitalize on technology as one method of improving processing times, as well as continuing its emphasis on personalized training of FoIA personnel and those who must make decisions on release of information under the FoIA.
"However, I must emphasize that with the current thrust in downsizing, it will be difficult to do more and do it quicker with fewer assets," he added.
But as the government agencies and departments struggle to keep up with FoIA requests, the requesters continue to be frustrated by delays and denials.
For four years, Albuquerque Tribune reporter Eileen Welsome fought to gain access to Department of Energy documents regarding 50-year-old experiments in which human subjects were injected with plutonium.
Her series of articles received numerous awards, including the 1994 Pulitzer Prize for National Reporting.
The Department of Energy's "response seemed typical of the way agencies often respond to FoIA requests," she said. "It was not a conspiracy so much as a complete lack of interest on the part of the bureaucrats whose job it was to dig out the documents."
Since then, however, there have been noticeable improvements, although, "Other reporters I have spoken with continue to complain of long delays or skimpy responses," said Welsome, who testified on behalf of the Society of Professional Journalists, American Society of Newspaper Editors and Newspaper Association of America.
A supporter of the EFoIA, Welsome noted that the multitrack system, which is mandated under the bill, helped expedite her recent request to the DoD.
"Had this multitrack system been in place when I filed my first FoIA request in 1989, I'm confident that I would not have had to wait three or four years for crucial documents to be released," she said.
Welsome also endorsed the proposal to expedite requests for information surrounding events of widespread media interest, as well as plans to allow the requester to specify the form of the data ? electronic or on paper ? where available.
Judicial Watch Inc. chairman Larry Klayman explained to the subcommittee how his organization tried to use FoIA in its ethics and legal reform investigations of the president and the late Secretary of Commerce Ron Brown.
Judicial Watch, "on behalf of the public at large," offered recommendations for strengthening FoIA, including: criminal penalties for willfully withholding information; mandatory awarding of attorneys' fees and costs to successful FoIA plaintiffs; and regular oversight hearings by Congress.
Reporters Committee for Freedom of the Press executive director Jane E. Kirtley pointed out that there have been some "good-faith efforts to curtail government secrecy," but added that, "in our view, we still have not achieved the open government envisaged by Congress, 30 years ago, when it enacted the Freedom of Information Act, or 20 years ago, when it enacted the Government in the Sunshine Act."
Although the RCFP has concerns about the Leahy bill, Kirtley noted that it is an opportunity "to fulfill the aspirations for participatory democracy that [Congress] articulated 30 years ago."
Robert Gellman, a privacy and information policy consultant in Washington, believes that the FoIA is "poorly drafted, inadequately funded and sometimes unenthusiastically implemented," but he did "not want to suggest that the FoIA is a failure as a result."
"In fact," he said, "the opposite is true. The law actually works well, because most requesters receive the documents that they seek."
While conceding that much of the criticism of FoIA is valid, he argued that "most of the problems with the FoIA are administrative and not legislative," with the principal constraint being a lack of resources for processing requests.
While lauding Leahy's efforts toward enactment of an EFoIA, Gellman had some problems with the current draft of the legislation, including: a "failure to adequately confront technological change"; the need for a "comprehensive review of how government electronic mail should be treated under all relevant information policy laws"; the difficulty of noting where deletions have been made in electronic documents, as the bill would require; and the ambiguity of the requirement that agencies provide records in electronic form when requested.
The administration of the EFoIA, as proposed in the Leahy bill, also creates problems, according to Gellman, in areas such as determining which records to publish in electronic form; mandating the multi-track processing system; the ambiguity of expedited access; and the imprecise definition of "record."
Gellman called Leahy's bill "well intended," but added that "in its current form [it] will not improve the FoIA and will almost certainly burden the administrative process and delay disclosure."
Former ASNE attorney Allan Adler, now vice president for legal and government affairs for the Association of American Publishers Inc., presented the subcommittee with his own view of the Leahy bill; legislation, he said, is necessary.
"Despite their considerable flexibility, the current provisions of the FoIA do not provide an adequate foundation for agencies or courts to establish clear, practical rules regarding . . . key electronic FoIA issues," Adler commented.
"Congress need not micromanage the agencies' handling of these matters, but it can and should provide sufficient guidance to limit the agencies' discretion to use the form or format of agency records as a basis for denying public access to such records," he added.
Adler cautioned against allowing the bill to fall to "omnibusitis," an "infectious, legislative virus, which causes a narrowly cast bill to swell up into a 'comprehensive' treatment of the bill's general subject matter," which "typically leads to the bloated bill's death by means of its own weight."
Adler also noted that fears about bureaucratic resistance and extended litigation are overstated.
"Although some personnel at federal agencies have demonstrated a pronounced reluctance to fully apply the FoIA's public access mandate to agency records in electronic form, it is unfair to simply assume that all, most or even many of the agency personnel would deliberately resist implementation of reasonable measures seeking to harness the efficiency of computers to achieve the basic objectives of the FoIA," he remarked.
James P. Lucier Jr., director of economic research for Americans for Tax Reform, commented that, "There really is no sensible way to debate that we do not need EFoIA now.
"Anyone who makes the improbable case that EFoIA will be too costly or too difficult for the agencies to implement misses the basic point that every day we go without this necessary update to the original 1966 legislation, we let federal agencies molder in a management environment that is decades behind past practices in the private sector," Lucier noted.
"It costs the taxpayer and the economy at large huge amounts of money to maintain a bureaucracy that is ineffective and overly complex due to antiquated information practices," he added.
"It also costs the government greatly in public confidence and perceived unresponsiveness, if not outright irrelevance, to the basic problems that trouble many Americans."
?( "We need to make clear that the FoIA is not just a right to know what's on paper records, but that it applies equally to electronic records.") [Caption]
?(? Sen. Patrick Leahy (D-Vt.), co-sponsor of the Electronic
FoIA (EFoIA) bill, S. 1090, which has passed out of
committee and is awaiting action on the floor of the Senate ) [Photo & ?(Caption]
"Had this multitrack system been in place when I filed my first FoIA request in 1989, I'm confident that I would not have had to wait three or four years for crucial documents to be released." ) [Caption]
?(? Albuquerque Tribune reporter Eileen Welsome, who fought to gain access to Department of Energy documents regarding 50-year-old experiments in which human subjects were injected with plutonium. Her series of articles received numerous awards, including the 1994 Pulitzer Prize for National Reporting.) [Caption]
?("In our view, we still have not achieved the open government envisaged by Congress, 30 years ago, when it enacted the Freedom of Information Act, or 20 years ago, when it enacted the Government in the Sunshine Act.") [Caption]
?(? Jane Kirtley, executive director, Reporters Committee for Freedom of the Press) [Caption & Photo]