Under Obama, FOIA reform relegated to the back burner

Mike Riggs Contributor
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Anyone who’s ever filed a Freedom of Information Act request, be he a man or be he a god, knows the headache of asking his government for information that isn’t already publicly available. President Obama was supposed to change all that. In March 2009, Attorney General Eric Holder released a memo to all federal agencies outlining reforms as well as announcing the newly created positions of chief FOIA officer and FOIA public liaison. Shortly after the announcement, Lucy A. Dalglish, director of the Reporters Committee for Freedom of the Press hailed the new rules as “a refreshing change from the disastrous standard set by former Attorney General John Ashcroft in 2001.”

One year later, the Associated Press released a study showing that the denial of Freedom of Information Act requests were on the rise under Obama. And if that study wasn’t bad enough, a new study released this week [PDF] reveals that the situation hasn’t improved all that much in the ensuing seven months.

According to Citizens for Responsibility and Ethics in Washington, the nonprofit group “has continued to fight many of the same battles it fought under the Bush administration….Similarly, Attorney General Eric Holder’s policy of disclosure has not translated into greater access to records that would shed light on controversial subjects, such as the policy of the Veterans Administration to purposefully under-diagnose post-traumatic stress disorder.”

To find out if other groups — including news outlets, commercial interests, individuals, and other nonprofits — were experiencing the same problems with their FOIA requests, CREW created a survey, which was distributed by the American Society of Access Professionals on the group’s private list-serve. Because CREW did not have access to the list-serve, and thus cannot quantify the list’s demographics, the organization wrote in its report that the results are “not scientific or statistically valid, [but] are definitive on at least some topics.”

Here are some of CREW’s more notable findings:

– “Two of the touted reforms – creation of agency chief FOIA officers (CFOs) and agency FOIA public liaisons – have had virtually no influence on the work of agency FOIA professionals,” the report says. According to the survey results, more than 60% of respondents said that the CFO position had no effect on their job, did not make processing requests clearer, and did not make their overall jobs easier. Comments on the position included, “Chief FOIA Officer? Seriously, there is no position description for FOIA, it’s everybody do everything,” and “Did not know this position existed.”

– Roughly 63% of respondents said the fact that FOIA is “not an administration priority,” was a problem.

– While “the vast majority of respondents are aware of Attorney General Holder’s FOIA guidelines,” which President Obama and the DOJ announced in 2009, “the majority reported no change at their agencies as a result of those guidelines.”

– According to individual comments collected from over 600 survey takers, concerns “range from political interference in the processing of FOIA requests to a lack of training for FOIA staff.” One survey taker complained that “political games involving FOIA and records access leads to more work being done to show what is or isn’t being done rather than actual FOIA work.”

– Respondents have not seen a shift in policy since Obama and Holder announced FOIA reform. “Over 36% of respondents claim a ‘presumption of openness’ was part of their agency culture before the attorney general issued his memo, while only 22% state a presumption of openness has become part of their agency culture since the memo’s release. Change has yet to happen at a number of agencies: 16% of respondents said a change is underway but not completed, while 15% said nothing has changed.”

– A majority of respondents also said that “guidance is not issued uniformly government-wide and there are limited agency funds to attend outside conferences and workshops.”

– One of the bigger tidbits: “New policies have not induced FOIA staff to rely less on the FOIA’s exemptions to withhold information. The most common response to the question of whether specific exemptions are used with the same frequency as before the attorney general issued his memorandum was yes: 50% of respondents said at their agencies the exemptions are used with the same frequency.”

– And this: “Many respondents identify staffing problems as a key impediment, particularly the lack of a clear career path for FOIA professionals. They suggest creating a federal job series, as the Office of Personnel Management has done for other government jobs, to professionalize the FOIA and attract and retain talent. They also call for using fewer contractors and more permanent staff and an overall increase in staffing levels.”