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03/13/2006
AP review finds
federal government missing deadlines and time limits
By MARTHA MENDOZA
AP National Writer
Many federal agencies fall far short of the requirements of
the Freedom of Information Act, repeatedly failing to meet
reporting deadlines while citizens wait ever longer for documents,
an Associated Press review has found.
Requests for information ranging from historical records to
federal contracts usually take months and sometimes take years
to be filled; most departments missed the Feb. 1 deadline
to send legally required annual reports to the Justice Department
(and many still haven't been submitted) and the Justice Department
hasn't produced an annual summary of FOIA reports for two
years.
"Federal FOIA is the water torture. It's just drip, drip,
drip. You wait and you wait and you wait," said Charles
Davis who heads the National FOI Coalition.
The Freedom of Information Act, signed 40 years ago by President
Johnson, dictates that federal records must be shared with
the public unless they involve national security or private
information about an individual or business.
Johnson's statement at the signing -- "A democracy works
best when the people have all the information that the security
of the Nation permits" -- has been echoed repeatedly
by lawmakers in both parties in recent years, who have updated
the law periodically with deadlines and restrictions to prompt
quicker responses.
But an Associated Press analysis of about 250 annual FOIA
reports submitted to the Justice Department between 1998 and
2005 found that:
-- Backlogs are increasing at most agencies. Overall, the
total number of requests pending at the 15 executive departments
at the end of Fiscal Year 2004 was 147,810, a 24 percent increase
over the previous year. Nine of the 15 federal departments
reported an increase in their backlogs from Fiscal Year 2003
to Fiscal Year 2004.
-- Many backlogs are lengthy. The most recent reports available
from the 50 worst laggards show the median wait for a request
to be handled ranges from about three months to more than
four years, depending on the agency. The slowest federal agency
is the National Archives, where officers explained most of
their requests, pending for an average of 1,631 days, have
to be reviewed by the originating agency for declassification
before they can be released.
-- Agencies involved with national security are clamping down
on the amount of information they release to the public. The
FBI, CIA and Defense departments, all agencies that have considerable
investigative branches, again reduced the percentage of requested
information released in full in 2005, continuing a trend dating
back at least seven years. The Justice Department, however,
showed a slight increase in the amount of information it released
in full for the first time since the 2001 terror attacks.
-- A full month after the Feb. 1 deadline, about 30 percent
of federal agencies and departments required to submit annual
FOIA reports to the Justice Department had failed to do so.
Those with late reports included the Department of Veterans
Affairs, the Social Security Administration and the Department
of Health and Human Services which, all together, received
about 88 percent of all FOIA requests in the country in 2004.
Paul McMasters, ombudsman of the nonpartisan First Amendment
Center and one of the nation's leading authorities on freedom-of-information
issues, said Congress tried to remedy the lagging response
times in 1996 by extending the amount of time agencies have
to respond, from ten to 20 days.
He said that remedy seems to have backfired, prompting agencies
simply to delay even longer. In addition, because there are
no consequences for missing FOIA deadlines, McMasters said
few FOIA directors seem to take the legal requirements seriously.
"There is absolutely no incentive for federal government
employees to act with any sense of urgency on FOIA requests,
and there are every sort of incentive to delay and delay,"
he said. "Those incentives are a culture of secrecy that
has always existed in government, from 40 years ago when FOIA
was passed to the present time."
FOIA does not require agencies to release information within
a certain amount of time. The law does, however, mandate that
agencies respond to requests in some way within 20 days. These
responses often come in the form of a postcard acknowledging
that a request has been received.
Actual processing often takes much longer. The most recent
figures available show that a third of Cabinet departments
had at least one agency where requests were pending for more
than a year.
Even requests that are stamped "expedited" based
on an exceptional need or urgency can lag for many months.
The Justice Department's Office of Information and Privacy,
which is in charge of administering FOIA across the federal
government, kept an expedited request pending for 185 days
last year.
Daniel Metcalfe, who directs the Justice Department's Office
of Information and Privacy, said that when a request is expedited
it heads to the front of the line. But complicated requests
can take a long time to complete, he said.
"Even though the agency is trying its hardest to process
the request as soon as practicable, it could take a long time
because of the scope, volume or complexity of what is being
sought."
Congress introduced the "Faster FOIA Act" last spring,
and President Bush issued an executive order in December,
calling on agencies to take several consumer-friendly steps.
Among them: streamlining the handling of requests under the
FOIA and appointing senior officials to monitor compliance
with the law.
To date all 15 cabinet level agencies have appointed chief
FOIA officers as required, although only seven of those agencies
appear to meet Bush's specific requirement that these appointees
be "at the Assistant Secretary or equivalent level."
Bush also ordered agencies to streamline the handling of requests
under the FOIA and appointing senior officials to monitor
compliance with the law.
But Bush's directive stopped short of modifying a 2001 policy
issued by then-Attorney General John Ashcroft requiring agencies
to carefully consider national security, effective law enforcement
and personal privacy before releasing information. Ashcroft
cited security concerns in the wake of the Sept. 11 attacks
as the reason for the changes to open government laws.
"The Bush-Cheney Administration sent a powerful message
government-wide with the Ashcroft FOIA policy in 2001,"
said Sen. Patrick Leahy, D-Vt., a leading FOIA reform advocate
who has several bills pending in Congress to modify the law.
"That shifted the upper hand in FOIA requests from the
public to federal agencies. The new policy says, in effect,
'When in doubt, don't disclose, and the Justice Department
will support your denials in court.' It undermines FOIA's
purpose, which is to facilitate the public's right to know
the facts, not the government's ability to hide them,"
he said.
His colleague, Sen. John Cornyn, R-Texas, said "more
remains to be done to ensure that American citizens have access
to the information they need and deserve."
Cornyn is pressing for additional funding to address backlogs,
which he said will "speed the rate at which information
is given to the public."
In its review, the AP found that in 2005, in addition to increasing
backlogs, many agencies decreased the amount of information
they were willing to release in full. FBI authorities gave
just six out of every 1,000 FOI applicants everything they
asked for, down from 50 out of every 1,000 in 1998. The CIA
has seen a similar, steady decline: just 11 percent of the
FOIA requests processed at the CIA were granted in total in
2004, down from 44 percent in 1998.
Washington-based attorney Scott A. Hodes, who led the FBI's
Freedom of Information litigation unit from 1998 to 2002,
said there's an institution-wide inclination to avoid complying
with the law.
"It doesn't surprise me that most responses are late,
and that they tend to deny a lot. Even though your higher
level administration officials will say they like FOIA, there's
a general dislike of FOIA," he said.
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AP investigative researcher Randy Herschaft and AP researcher
John Parsons contributed to this report.
___
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