The Freedom of Information Act is one of the crown jewels of the modern American republic. The law, which requires public access to most government documents and communications, has made it significantly easier for Americans and the journalists who inform them to hold government officials accountable.
In a day and age when government gets ever-bigger, FOIA protects Americans from being ruled in secret. Or at least, it does so when officials actually follow the law — which, unfortunately, they often do not.
Former Secretary of State Hillary Clinton’s use of private email to conduct State Department business represents just one common method of frustrating the fulfillment of lawful FOIA requests. Another is for the government to charge outrageously high fees for disclosing documents that belong to the public.
But often, agencies and departments simply depend on time as their ally. Despite the law’s requirement of compliance within 30 days, they sometimes delay until they are sued, the requester gives up, or the original request becomes irrelevant. For example, the Environmental Protection Agency avoided complying with a Landmark Legal Foundation request about regulations the agency was holding until after the 2012 election. In the subsequent lawsuit, still pending, a federal judge excoriated the agency for its deceptions and attempts to flout the law.
In short, the bureaucrats are winning the war on transparency. As the Washington Examiner‘s Sarah Westwood reported earlier this month, less than one-third of the 700,000 FOIA requests that are filed each year are answered in full. This despite President Obama’s instruction to government agencies to apply “a presumption of disclosure” whenever material is requested to be made public.
Congress wants to reform FOIA, and that’s a very good thing. A bill that failed at the end of the last Congress has been reintroduced. It would make requests easier to file, require frequently requested documents (three times or more) to be placed online for everyone, and set a time limit for keeping certain exempted materials out of the public eye. It would also increase oversight and strengthen the agency that serves as the FOIA ombudsman within government.
Congress should pass this bill, but it should also consider more substantial reforms. For example, why wait until there have been three requests to put documents online? Given the ease of uploading anything, most non-exempt government documents should simply be placed online by default.
Public records — including intra-governmental email correspondence — should be retrievable upon request almost instantly from a modern digital repository not in the power of the agency where it originates. Had this been the case in 2012, the IRS could never have falsely claimed it could not retrieve emails pertaining to the agency’s harassment of conservative nonprofits.
There should also be stiff penalties for flagrant FOIA resisters within government — beginning with the loss of employment and escalating from there into fines and criminal penalties.
When he reintroduced his FOIA reform bill earlier this year, Rep. Darrell Issa, R-Calif., noted that “it should be easier, not harder, for citizens to have simpler and broader access to government information” now that the Internet exists and is widely used. He is absolutely right.
If Obama wants to atone for failing to live up to his promise of the most transparent administration in history, he can begin by encouraging such reforms rather than applying pressure in an effort to weaken them as they move through Congress.
