Document Friday for Darrell Issa: An Eighteen-Year-Old FOIA Request.

February 15, 2011 at 5:00 PM!

Can Republicans and Democrats work in a bipartisan manner to ensure that federal agencies are following the Freedom of Information Act?

Darrell Issa, the new Chairman of the House Committee on Oversight and Government Reform, certainly appears to have begun examining ways to improve the FOIA system.  On 25 January 2011, he sent a letter to 180 federal agencies and offices informing them that, “FOIA is one of the most important tools for government transparency and accountability…Without FOIA, [US citizens] could not hold the government accountable.” Issa also noted that “President Obama recognized the importance of FOIA when he made it the subject of an executive memorandum on his second day of office.”

Issa then stated that the House Committee On Oversight and Government Reform was acting “to ensure[] that all federal agencies respond in a timely, substantive, and non-discriminatory manner to requests for information under FOIA.”  He instructed the agencies to provide the Committee their FOIA logs for the past five years –as well as additional FOIA data–  by February 15, 2011 at 5:00 PM!! Boy, do we at the Archive wish we could get FOIA turnaround speeds like that!

"One of the most important tools for government transparency and accountability."

In his letter, Issa asked the agencies to provide his Committee:

• FOIA logs covering FOIA requests for the past five years.
• A list of responses older than 45 days which have not been issued a “complete and final response” by the agency.  (The Freedom of Information Act states that request be completed in 20 business days.  Agencies rarely meet this requirement.)
• “All communication between [the] agency and the requester” for overdue responses.
• And a report of any instances in which agencies were ordered by a court to pay attorney’s fees to FOIA requesters.  (Which likely reveal FOIA negligence by an agency.)

That’s potentially a huge amount of data; hundreds of thousands (millions?)  of pages.  No doubt a short-term burden on FOIA officers.

But from my point of view, I think it’s great that Congress is exercising its oversight to ensure that the Freedom of Information Act –an act which it passed in 1966 and strengthened by overriding President Ford’s 1974 veto– is effective.  As President Obama stated, the Freedom of Information Act “is the most prominent expression of a profound national commitment to ensuring an open Government.”

Hopefully the Committee on Oversight and Government Reform is familiar with the previous FOIA audits published by the National Security Archive and the Knight Foundation (we’ve done eight).  Our most recent Audit, “Sunshine and Shadows: The Clear Obama Message for Freedom of Information Meets Mixed Results,” found that many federal agencies were not living up to the FOIA standards set by the Obama administration.  The day after the Audit was released, Chief of Staff Rahm Emmanuel and White House Counsel Bob Bauer sent a memo to each federal agency instructing them that “more work needs to be done” on FOIA and that they must take “several specific steps” to carry out President Obama’s policy.

The specific steps included, “updating guidance and training materials” to include the president’s instructions for a more open FOIA policy, and “assess[ing] whether you [as an agency] are devoting adequate resources to responding to FOIA requests promptly and cooperatively.”

Issa would also be disappointed to know that our Audit found that requests frequently took more than five, or even ten years, to be completed.  At the end of Fiscal Year 2009, the oldest outstanding FOIA request –filed to the US National Archives by National Security Archive Analyst Bill Burr– was over eighteen years old!

17 September 1992.... And still languishing.

The request* –for various documents found in six boxes of White House Office of Science and Technology files– was sent to other agencies for “consultation” because NARA did not have authority to declassify the documents.  Slowly, individual documents have trickled from agencies (including the Air Force and Department of Energy) to Dr. Burr, but the request remains unfulfilled.  As NARA noted in its FY 2009 FOIA report, only the “consultation” agencies can take action to complete the request, not the US National Archives.

I welcome Congressman Issa’s investigation into FOIA and hope he can help lead a bipartisan effort to improve the FOIA system.  Some obvious places to begin include:

• Re-passing and enacting the Leahy-Cornyn “Faster FOIA Act,” which  passed unanimously in the Senate, but died in the House and did not become law.
• Revving up the capacity at the newly formed National Declassification Center.  (Obama’s Executive Order On Classification directed the NDC to review more than 400 million pages by 2013.  So far is has reviewed 83 million.)
• And ensuring that each agency is diligently and thoroughly conducting its Fundamental Classification Review, as mandated by Executive Order 13526.  It is likely that Issa will find that a root cause of FOIA backlogs is over-classification in general.

Issa’s inquiry into FOIA practices –notwithstanding the short-term burden it will have on FOIA offices– has the potential to spark a successful bipartisan legislative endeavor to improve Freedom of Information in America.  And if the “bipartisan FOIA moment” doesn’t materialize, and his Committee’s inquisition –and its power to subpoena– merely “shames” agencies into attempting to better comply with FOIA… Well, that’s alright with me too.

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Surprisingly, the US National Archive’s FY2010 FOIA Report reports that the oldest request is now dated 10 July 1992, older than Dr. Burr’s 21 September 1992 request.