The FOIA Shell Game

By: Mark Fitzgerald For advocates of government transparency ?and, as election after election shows, that means the overwhelming majority of Americans ? Dec. 14, 2005, brought an unexpected early Christmas gift from a Bush White House that has a devotion to secrecy rivaled only by the Illuminati. In an executive order larded with enough rhetoric about openness to make the folks at the National Freedom of Information Coalition blush, President George W. Bush on that day directed federal agencies to speed up their response to requests under the Freedom of Information Act (FOIA) by appointing chief FOIA officers and adopting concrete timelines and fulfillment goals.

Eighteen months later, we've gotten our second report from U.S. Attorney General Alberto Gonzales on how the 92 federal agencies are doing ? and boy, it seems those bureaucrats are really hopping to it. "Overall, federal agencies made diligent and measurable progress in implementing the executive order during this first reporting period, which represents only a little more than seven months of activity under the FOIA Improvement Plans," Gonzales reports. More than half of the agencies ? 54 of them! ? actually met their mostly modest milestone goals on time, he exults.

Now, if my youngest kid brought home a report card from St. Thecla Elementary School with a mark of 59, the next time he touched his PlayStation controls he'd have to wipe away the cobwebs. But this is government work, after all, and Gonzales assures us that this White House and its agencies are making Progress toward citizen-centered and results-oriented FOIA practices. And if we can't believe Gonzales ? he of the torture memos, Patriot Act wiretapping greenlights, and political hiring and mass firing of federal prosecutors ? then the terrorists have won. Or something.

Maybe he was distracted preparing for testimony before Congress, but our attorney general couldn't make even his own "progress" report sound much like progress.

As the invaluable Coalition of Journalists for Open Government noted in its analysis of the report, the very first example of an agency really getting on the stick is Housing and Urban Development (HUD), which Gonzales hailed for taking "the challenge of backlog reduction seriously." So what, specifically, had HUD done? It issued a memo on dealing with backlogs. Meanwhile, as the coalition notes, HUD's actual backlog rose 33% in 2006, beginning the year with 3,725 unprocessed requests and ending it with 4,951.

Little in Gonzales' report contradicts the interim report card the coalition issued back in February, when the first agencies started reporting on their FOIA performances. What are the actual backlogs at the "key" agencies supposedly making so much progress? The report doesn't say.

The fact is, backlogs are increasing at many agencies, the waits to fulfill FOIA requests are growing longer, FOIA response staffs have been slashed, and bureaucrats under the Bush administration are saying no to requesters far more often than they did during the Clinton era.

Where the report mentions "challenges" in an agency's performance, it tries to slough it off by portraying the bureaucrats as overwhelmed by a sudden increase in requests. The report notes, as if this were some inexplicable phenomenon, that the Department of Veterans Affairs, for instance, received 23,811 more requests last year than in 2005. Funny how that works: Start a war, and the next thing you know, more vets are FOIA-ing the VA.

There's a fix for this problem, and it's awaiting what would be overwhelming legislative approval ? because congressmen know that the typical FOIA requester is not a nosy investigative reporter looking for scandals but rather that disabled vet, that codger pursuing Social Security benefits, that farmer curious about how the Department of Agriculture allocates subsidies in his neck of the woods.

The fix is the Openness Promotes Effectiveness in Our National Government Act of 2007, or OPEN Government Act, S. 849. Perhaps the best shorthand description of the bill appeared in the Fairfield County (Conn.) Weekly: "a true Patriot Act designed to open up government machinations and documents to the public and press, and to prevent self-interested officials from secretly misusing their given power." It would give the federal FOIA the same kind of teeth ? such as absolute deadlines with real consequences for bureaucrats ?that many states have adopted.

But as E&P goes to press there still has been no vote on the measure, because Sen. John Kyl (R-Ariz.) put a secret hold on it. When Kyl's opposition was outed by a Wiki-journalism effort led by the Society of Professional Journalists, he explained that he was blocking it because the Justice Department told him it had "uncharacteristically strong" objections to the law. So the same Alberto Gonzales who is trying to sell a rosy picture of a White House intent on making FOIA more accessible is sabotaging the very law that would accomplish that.


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