Improving open government oversight through FOIA reform
The Freedom of Information Act is one of the primary levers by which journalists, government watchdogs and other organizations can hold the United States government accountable. Today in Washington, the U.S. House of Representatives Committee on Oversight and Government Reform held a hearing on “The Freedom of Information Act: Crowd-Sourcing Government Oversight.
The testimony of the witnesses made it clear that major issues persist with the cost, mechanism and compliance with FOIA requests made to government agencies.
His prepared statement provided context for the focus of the hearing:
The Freedom of Information Act (“FOIA”) is one of the most important tools for government transparency and accountability. It permits the private-sector, the media, watchdog groups, and the general public to scrutinize the activities of federal agencies – from the telephone logs and email correspondence of federal employees to internal memoranda, transcripts, and meeting minutes.
Minus a few specific exemptions designed to protect narrowly-defined privacy concerns, national security and law enforcement matters, claims of executive privilege and trade secrets, information about the government’s work is required by law to be publicly accessible. Indeed, every federal agency, commission, department and corporation – as well as the White House itself – falls under FOIA’s expansive authority.
Representative Elijah Cummings (D-MD) defended the record of the Obama administration on open government and quoted President James Madison in his opening statement:
A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both. Knowledge will forever govern ignorance, , and a people who mean to be their own governors, must arm themselve with the power knowledge gives.”
Rep. Cummings introduced a new bill today, entitled the “Transparency and Openness in Government Act.” (As of the time this post went live, it was not in Thomas.gov yet.) According to Rep. Cummings, the bill would make federal commissions more transparent, increase access to records, ensure government email records were preserved and improve GAO access to govt records. The legislation includes five bills that passed the House during the 111th Congress:
- The Federal Advisory Committee Act requires agencies to disclose more information about advisory committees and closes existing loopholes;
- The Presidential Records Act increases public access to White House records by establishing statutory procedures prior to FOIA releases;
- The Presidential Libraries Donation Reform Act mandates greater public disclosure of library donor information;
- The Electronic Message Preservation Act modernizesthe Federal Records Act and the Presidential Records Act to ensure that White House and agency e-mail records are preserved;
- The GAO Improvement Act strengthens the authority of the Government Accountability Office to access agency records.
Transparency shouldn’t be a partisan issue, emphasized Cummings.
The committee heard from a distinguished panel of witnesses, including Miriam Nesbit, the director of the Office of Government Information Services (OGIS) at the National Archives and Records Administration. OGIS opened in September 2009 and acts as an ombudsman for FOIA request. “OGIS encourages a more collaborative, accessible FOIA for everyone,” said Nisbet.
While both witnesses and congressmen recognized that the Department of Justice launched FOIA.gov at the outset of Sunshine Week, “there is the awkward fact the Justice Department’s own FOIA backlog has not been reduced in the past year,” observed Daniel Metcalfe, executive director of Collaboration on Government Secrecy.
The costs of FOIA are part of that story. “In 2010, agencies reported nearly $400 million to process FOIA requests,” testified Rick Blum of SunshineInGovernment.org.
There’s also the issue of agencies and officials claimed exemptions to requests. Blum noted that for Sunshine Week, ProPublica created a searchable database of FOIA exemptions.
These claimed exemptions extend to the White House. Tom Fitton of Judicial Watch challenged the Secret Services’ contention that visitor logs are not subject to FOIA.
While the Project of Government Oversight’s Angela Canterbury gave the administration credit for proactive information release at USASpending.gov, Data.gov, Recovery.gov and FOIA.gov, she acknowledged that “if FOIA is the yardstick for openness, then we haven’t gotten very far yet.”
The issue lies is in the default towards secrecy versus openness. “Too often, overt secrecy has not only impaired the promise of FOIA but also has put the American people at risk,” said Canterbury.
That said, Daniel Metcalfe did offer recognition of President Obama’s elevation of open government in his administration, including a speech at the United Nations where openness was highlighted in an “unprecedented” way.
The written testimony of the witnesses is linked below. Video of the hearing will be available through the tireless efforts of citizen archivist Carl Malamud at House.Resource.org later in the week.
- Miriam Nisbet, Director, Office of Government Information Services, National Archives and Records Administration
Daniel Metcalfe, Executive Director, Collaboration on Government Secrecy, Retired Founding Director, Office of Information and Privacy, Department of Justice
Tom Fitton, President, Judicial Watch
Rick Blum, Coordinator, Sunshine in Government
Angela Canterbury, Director of Public Policy, Project on Open Government Oversight
Photo Credits: US House and Reform Flickr Account