Washington, D.C., March 14, 2011 - The Obama administration is only about halfway toward its promise of improving Freedom of Information responsiveness among federal agencies, according to the new Knight Open Government Survey by the National Security Archive, released today for Sunshine Week at www.nsarchive.org.
On his first day in office, January 21, 2009, President Obama issued a presidential memorandum instructing federal agencies to “usher in a new era of open government.” In March 2010, however, the 2010 Knight Open Government Survey found that only 13 out of 90 agencies had actually made concrete changes in their FOIA procedures. The resulting national headlines sparked a new White House call to all agencies to show concrete change.
This year, the 2011 Knight Open Government Survey found that a few more than half of the federal agencies have complied--up from 13 to 49. (A chart of the agencies’ responses is below.)
“At this rate, the president’s first term in office will be over by the time federal agencies do what he asked them to do on his first day in office,” commented Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, which funded the study. “Freedom of information laws exist to help all of us get the information we need for this open society to function. Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws.”
Modeled after the California Sunshine Survey and subsequent state “FOI Audits,” the Archive’s series of Knight Open Government Surveys started in 2002 and use open government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Knight Open Government Surveys led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests.
“The Obama administration told us last year that one year was too short a time to show real change,” said Tom Blanton, director of the National Security Archive. “This year’s Knight Survey reveals a glass half full of open government, and some persisting deep problems including FOIA requests marooned for years in never-ending referrals among agencies.”
The 2011 Knight Open Government Survey team filed FOIA request with all 90 agencies that have chief FOIA officers asking for copies of concrete changes in their FOIA regulations, manuals, training materials, or processing guidance as a result of the “Day One” Obama memorandum, and the March 2010 White House memorandum from then-Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer. The Emanuel-Bauer memo told agencies to 1) update all FOIA material, and 2) assess whether FOIA resources were adequate.
Several agencies demonstrated significant changes in their processes, major upgrades to their Web postings on FOIA, and improved responsiveness to requesters. (See, for example, helpful FOIA training PowerPoint slides produced by the Department of Health and Human Services, Department of the Interior, and the National Archives and Records Administration.) But others showed no change as yet, or failed even to respond in a timely fashion to the Knight Survey requests. In one egregious case, the U.S. Postal Service stated it had “no responsive records.” It said it had never received the Emanuel-Bauer memo asking for progress to be shown in response to President Obama’s first-day call for openness.
“Perhaps the Postal Service lost that memo in the mail,” commented Nate Jones, the Archive’s FOIA coordinator who managed the Knight Survey requests. He noted that 17 agencies are still working on the request after 117 business days when the law requires 20, and that four agencies did not even acknowledge receiving the Archive’s FOIA request despite numerous calls and faxes. “That indifference toward FOIA shows just how far some agencies lag behind implementing the law that President Obama called ‘a profound national commitment to ensuring an open government.’”
The Archive found significant change among the responsive agencies especially in the area of discretionary releases of information. Before the Obama proclamations, agencies withheld most drafts of internal documents, and even staff-level reports, under the 5th exemption to the FOIA that applies to “pre-decisional” or “deliberative process” information. Openness advocates had long argued that this kind of material was exactly necessary to bring the greatest transparency and accountability to government decision-making. Now, agency reporting shows declining use of the so-called “b-5” exemption, and the 2011 Knight Survey received multiple responses from the high-scoring agencies that included their own drafts and internal e-mails about how to respond to the Emanuel-Bauer memo. A standout here was the Department of the Interior, which provided copies of e-mail exchanges noting how the agency’s own IT restrictions kept FOIA officers from seeing key FOIA blogs – a problem no doubt now remedied.
Agency responses to the Archive’s FOIA requests also highlighted the real potential of online proactive disclosure as the most efficient way to inform the public and reduce the burden of individual request processing. The highest-scoring agencies in the 2011 Knight Survey provided multiple examples of online publication of materials that previously had to be requested under FOIA, but now were accessible with the click of a mouse. A standout here was the Consumer Product Safety Commission, which finally this month is fulfilling a Congressional mandate from 2008, to put online its consumer complaints database – dealing with product defects in baby cribs, drywall, and the like. Manufacturers and Congressional critics had threatened to hold up the public’s online access, but Obama administration commitment clearly carried the day.
In contrast, 12 federal agencies reported still-pending FOIA requests more than six years old, when the law requires a 20-business-day response time. The Archive’s findings suggest a major part of the problem is the “daisy-chain” of referrals between agencies, since 10 out of the 12 with ancient requests reported similarly ancient referrals.