Witnesses: Open records law still difficult to use

Wednesday, March 16, 2011

WASHINGTON -- The U.S. Freedom of Information Act remains an unwieldy and inefficient tool for obtaining government records despite President Barack Obama's promise to reinvigorate the law and improve his administration's transparency, experts told the Senate on Tuesday.

The Obama administration, meanwhile, said it has made significant progress since January 2009, when the president directed federal agencies to disclose more information rapidly and reduce their backlogs of requests for records by citizens, journalists, companies and others.

John Podesta, president of the progressive Center for American Progress, told the Senate Judiciary Committee that federal agencies have not carried out Obama's order aggressively enough. Podesta, a former White House chief of staff in the Clinton administration, also said there is evidence some agencies have reduced their backlogs of information requests through administrative maneuvering instead of providing the requested information.

"The administration has the right policy," Podesta said. "The problem is in the implementation."

Podesta's criticisms are significant because of his close ties to the White House. He guided Obama through the presidential transition process after the 2008 election. He has long been an advocate for government openness. He told the committee that most government information should be automatically disclosed on the Internet.

Sarah Cohen, a Duke University journalism professor testifying on behalf of the Sunshine in Government Initiative, said the law is difficult to navigate and useful only to the most patient and persistent journalists. Cohen credited Obama's transparency goals but warned the reforms are tenuous. "Administrations change, and these actions can be reversed as quickly as they began," she said.

Melanie Pustay, director of the Justice Department's office of information policy, defended the administration's record. Agencies are doing a better job of following the open records law by applying the presumption of openness, making the FOIA process more efficient, and posting more information online to reduce the number of requests, Pustay told the committee.

"I think we're the most transparent that we've ever been," said Pustay, whose office has responsibility for ensuring governmentwide compliance with the Freedom of Information Act.

But Sen. Charles Grassley of Iowa, the committee's top Republican, said Obama's pledge has yet to be put into practice. He cited reports from The Associated Press last year that the Homeland Security Department had sidetracked hundreds of requests for federal records to top political advisers, who wanted information about those requesting the materials.

Such vetting would violate the president's directive, Grassley said, as well as a subsequent March 2009 memo from Attorney General Eric Holder telling federal offices that "unnecessary bureaucratic hurdles have no place in the "new era of open government."'

Grassley and Rep. Darrell Issa, the Republican chairman of the House Oversight and Government Reform Committee, have asked the inspectors general at 29 agencies to investigate whether similar screenings of records requests are taking place in other government offices. Only 11 have responded, even though the deadline passed five months ago, Grassley said.

"There's a disturbing contradiction between President Obama's words and the actions of his political appointees," he said.

Pustay said the identity of the requester should have nothing to do with the request. But she declined to discuss the specifics of the AP's reports, saying she was not in a position to talk about the Department of Homeland Security's FOIA process.

Thomas Fitton of Judicial Watch, a conservative watchdog group, told the committee that the Obama administration is less transparent than the Bush administration. Agencies have stonewalled even the most basic requests for information, he said. "The Bush administration was tough and tricky, but the Obama administration is tougher and trickier," Fitton said.

An AP analysis of new federal data this week found agencies took action on fewer requests for federal records last year even as significantly more people asked for information. The administration disclosed at least some of what people wanted at about the same rate as the previous year, according to the AP's review of the 35 largest government agencies.


Senate Judiciary Committee: http://judiciary.senate.gov/

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