Broken FOIA Far from Healing as U.S. Agencies Cheat Public

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In America, one of the fundamental principles of our democracy is that our government works for us. We are supposed to have a “government of the people, by the people, for the people” as President Abraham Lincoln famously said. To help ensure that principle is upheld we recognize that public access to information about government actions is critical to sustaining individual and collective freedoms.

But this year, as we notch the 50th anniversary of the signing of the Freedom of Information Act (FOIA), mounting evidence shows that many of our federal agencies are actually working to stifle that freedom by wrongfully withholding information from the public. In June, President Obama signed a bill presumably aimed at strengthening FOIA. But while the law offers a range of new procedural improvements, the provisions do little to actually prevent the continuation of common abuses and excuses we see from agencies reluctant to turn over information about their activities.

Attempts to evade the FOIA law have become so routine that the U.S. Government Accountability Office is convening a team now to begin a broad audit of FOIA compliance at federal agencies. The GAO review will get underway this month, according to the GAO.

The investigation comes in response to a directive issued by the House Committee on Oversight and Government Reform and the Senate Committee on the Judiciary, congressional bodies that have oversight of FOIA operations. And it comes after a damning report from the House committee that found the culture of the executive branch of the federal government “encourages an unlawful presumption in favor of secrecy when responding to Freedom of Information Act requests.” Agencies are supposed to act upon and respond to FOIA requesters within 20 working days, but anyone who regularly makes FOIA requests knows that it will likely be months, if not years, before any records are produced. If and when records are turned over, they often are heavily redacted, making them essentially useless. The House committee on oversight also found that political pressures often are at play, with documents deemed problematic or embarrassing withheld from release.

“Secrecy fosters distrust,” the committee report noted.

In their letter to the GAO, congressional committee leaders cited an Associated Press analysis that found people who asked for records received censored files or none at all in a record 77 percent of requests last year. Overall, the Obama administration censored materials it turned over or fully denied access to them in a record 596,095 cases.

Filing a FOIA these days is a little like stepping through the looking glass into an alternative reality where order and logic are elusive. Pro Publica, a nonprofit investigative journalism organization, recently offered a litany of examples of governmental side-stepping of the law.

And I remain mired in my own frustrating FOIA odyssey. In January, I requested certain records from the Food and Drug Administration regarding a food safety testing program the agency conducts to measure pesticide residues in food. When I inquired about the status of my request, after the requisite 20 working days had passed, the agency told me it was waiting for its drug evaluation unit and its center for veterinary medicine to search for records. My protests that the records obviously were not housed in the FDA’s drug or veterinary units got me nowhere. After several months, the FDA acknowledged the request should be assigned to its food safety unit, but then I was told a response would be delayed because there was a “backlog due to staff changes.” I was also told some records had to be cleared with the Environmental Protection Agency, but the FDA FOIA officer assigned to my request wasn’t clear on how to make that referral. I’ve since been told the agency has found several hundreds of records that are responsive to my request, but all I’ve actually received are a litany of excuses and delays, and a handful of records with several sections blacked out.

The FDA has repeatedly cited the infamous “(b)(5)” exemption, which allows agencies to redact information they deem part of a “deliberative process.” The House committee found that the (b)(5) exemption is misapplied by federal agencies so frequently that it is known as the “withhold it because you want to” exemption.

And it’s not just federal agencies working to block public access to information that rightfully belongs to the public. Many of our public universities have also been found balking at complying with state open records laws. The organization I work for, the consumer advocacy group U.S. Right to Know, last month filed a lawsuit against the University of California-Davis after the university failed for more than a year and a half to turn over public records. As well, state officials in Michigan were exposed last year promoting the charging of exorbitant fees as a way to discourage records requests. And North Carolina state officials are being sued for circumventing the public records law in that state, also with delays and unreasonable fees.

These are not trivial matters. Information is being withheld about the safety of our food and the chemicals in our environment, housing and home lending programs, banking oversight, police actions, customs and border control concerns, election issues and more. Without factual information about the workings of government, the public cannot make informed choices at the ballot box or even know whether to support or oppose public policies.

Former President Jimmy Carter said: “Most often, the revelation of the truth, even if it’s unpleasant, is beneficial.”

One provision of the new law signed this June is the formation of the Chief  FOIA Officers Council (CFO), a group of federal agency FOIA officials who are charged with developing recommendations for increasing FOIA compliance and working on initiatives that will increase transparency.  The group is holding a public meeting Sept. 15. Journalists and others interested are encouraged to attend.

It’s a good small step forward. But our leaders in Washington can, and should, do more to ensure that the truth about our government is not so hard to find.

(Article originally appeared in The Hill http://thehill.com/blogs/pundits-blog/healthcare/294192-how-freedom-falls-broken-foia-far-from-healing-as-us-agencies)