of Meredith Fuchs, General Counsel, National Security Archive
Before the Senate Committee on the Judiciary, Hearing on
“Open Government: Reinvigorating the Freedom of Information Act,”
March 14, 2007.
Not Found: 10 Years After E-FOIA, Most Federal Agencies Are Delinquent
Washington D.C., 16 March 2007 - The
U.S. Air Force today won the third annual Rosemary Award, which
recognizes the worst Freedom of Information Act performance by
a federal agency. Given annually by the Emmy-and George Polk Award-winning
National Security Archive, the Rosemary Award is named after President
Nixon's secretary Rosemary Woods and the backwards-leaning stretch
which she testified resulted in her erasing eighteen-and-a-half
minutes from a key Watergate conversation on the White House tapes.
Today’s Rosemary Award citation quotes the
U.S. District Court finding in 2006 that the Air Force had “failed
miserably” to meet FOIA deadlines. The Award also cites
Air Force’s status as an “E-Delinquent” in the latest National
Security Archive audit of agency compliance with the Electronic
FOIA, which found 139 broken links on the Air Force FOIA Web sites.
Air Force performance over the last year has also included losing
records while ostensibly processing FOIA requests, and featuring
a FOIA contact fax number that actually rang in a patient’s room
at the hospital at Wright-Patterson Air Base in Ohio.
2006 Rosemary Award was presented to the Central Intelligence
Agency for “the most dramatic one-year drop-off in professionalism
and responsiveness to the public we have seen in 20 years of monitoring
federal government compliance with the freedom of information
law.” After this poor performance, however, the CIA received
high marks for its E-FOIA performance in the Archive’s latest
audit, “File Not Found: 10 Years After E-FOIA, Most Federal Agencies
Archive sued the Air Force in 2005 over its poor FOIA responsiveness,
and Judge Collyer of the federal district court in Washington
concluded in her April 2006 decision that the Air Force has
“failed miserably to
handle Archive FOIA requests in a timely manner” and “has engaged
in a pattern or practice of failing to make timely determinations
on its FOIA requests and appeals.” Judge Collyer also noted that
the Air Force itself recognized its FOIA failures: “A man of few
words, Lieutenant General Hobbins, the Air Force’s Chief Information
Officer, has told the leadership of the Air Force’s major commands
that the Air Force record on handling FOIA requests has not been
‘good.’” Now the Air Force is falling short of complying
with Judge Collyer’s orders in that lawsuit. It still has not
produced all the requested documents and is repeatedly violating
the court-ordered timeframes.
year’s Rosemary Award will be presented to Lt.
Gen. Michael W. Peterson, who
replaced General Hobbins as Chief Information Officer in November
2005, and Albert Bodnar, the Air Force FOIA Public Liaison.
Some of the Rosemary Award findings:
several occasions, the Air Force has misplaced or lost track
of documents responsive to pending FOIA requests.
- The only copy of a set of
documents that was loaned to one Air Force office by the National
Archives and Records Administration (NARA) in 1997 went missing,
along with other files, after the office that had borrowed
them was disbanded.
- In December 2006, the Air
Force sent a courier to pick up copies of several classified
documents from NARA; two months later, the documents have
not arrived at Air Force offices and security officials have
been unable to locate them.
- The Air Force cannot respond to one Archive request because
the relevant documents were lost
when an Air Force computer hard drive crashed; no paper copies
were kept, and the Air Force does not know how many or which
records were destroyed.
- One key component, Air Materiel Command,
does not have a central tracking database for all FOIA requests
it receives; requests are tracked only by the individual AMC
offices at various air force bases.
- An Archive FOIA request filed with the Air
Force after the 2005 lawsuit was filed has been pending with
Air Mobility Command for two and a half years; in February 2007,
the Archive was notified that Air Mobility Command would need
more time to process the request.
- The Air Force has wholly failed to implement
the 1996 E-FOIA Amendments. According to a recent
National Security Archive study, Air Force FOIA information
is split between two distinct Web sites (only one accessible
from the Air Force home page), and neither site contains the
records E-FOIA requires agencies to make available. The Air
Force attempts to pass off its responsibility for maintaining
an electronic reading room by providing links—at least 139 of
which are broken—to component and Air Force base Web sites.
Many of the components have no FOIA page and do not post the
- FOIA information on the Air Force Web site
is incorrect and out-of-date. For example, a fax number for
one Air Force component, listed on the Air Force FOIA site as
the place to send FOIA requests, was not an Air Force component’s
fax at all, but rather the phone number for a patient room in
a base hospital at Wright-Patterson Air Base in Ohio.
- In August 2006, the Air Force claimed that
its oldest pending FOIA request was submitted on May 1, 1997
in data it provided for the Department of Defense’s annual FOIA
report to Congress. In actuality, the Air Force has many much
older requests, including one submitted by the Archive on
February 25, 1988, and a number of other Archive requests
dating to the late 1980s and early 1990s.