FOIA Facts: Bush Orders FOIA Executive Officers

In a move apparently prompted by pending legislation, the President issued Executive Order 13392 entitled Improving Agency Disclosure of Information on December 14, 2005. This Executive Order, as well as a Memorandum for Heads of Department and Agencies issued by the Office of Management and Budget (OMB) on December 30, 2005 calls for agencies to name a Chief FOIA Officer as well as to review agency FOIA operations and compile a plan to improve agency FOIA operations.

The Executive Order calls on agencies to name a Chief FOIA Officer at the Assistant Secretary Level or equivalent by January 13, 2006. This individual is to be posted on the agency's website.

More importantly, the Executive Order calls for the Chief FOIA Officer to conduct a review of agency FOIA operations. Following this review, the Chief FOIA Officer is to draft a plan with "concrete milestones for FY06 and FY07." A timeline for this review is also given. By June 14, 2006, agencies must send the findings and the improvement plan to the Department of Justice and OMB as well as post it on the agency's website. Agencies must then include information on how well they have met the milestones of the plan in their FOIA reports to DOJ for FY06 and FY07.

The Executive Order also calls for agencies to establish a FOIA Requester Service Center that "will enable FOIA requesters to seek information concerning the status of their FOIA request and appropriate information about the agency's FOIA response."

Finally, the Executive Order calls for agencies to designate a public liaison who "will serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff."

As I have written previously, pending legislation in Congress introduced by Texas Senator John Corwyn also attempts to improve agency FOIA operations. However, Sen. Corwyn's legislation attempts to cut down agency backlog times by disallowing agencies to utilize certain FOIA exemptions when they fail to respond to requests within the statutorily mandated response time. Another aspect of the bill is the creation of a FOIA Omsbudsman which would act as an arbiter to mediate disputes between FOIA requesters and agencies. The bill also requires the government to set up a central database that would allow requesters to track their requests as they meander through the FOIA process. Finally, the bill allows for the recovery of attorney fees where the bringing of a lawsuit is the catalyst for getting the requested information. Finally, the proposed legislation also expands the definition of media so that internet journalists and bloggers can fit within the definition, and therefore be eligible for fee waivers.

The Executive Order appears to be an attempt to defuse the legislation. While any attempt to improve FOIA operations is to be applauded, the Executive Order may only be window dressing. Actual judgment should be reserved until the actual plans are posted on the agency websites. If the plans are only things such as "seek additional funding for FOIA operations," the Executive Order will have no impact. If the plans call for agencies to actually pay attention to FOIA operations by making employees responsible for aiding the FOIA Offices in processing documents and for assigning more resources the agencies already have to FOIA operations, then the plans may have an impact. Of course, just because a plan is made doesn't mean there will be any follow through. It will be up to Congress and the public to keep the heat on the agencies to actually improve FOIA operations, not just talk about it.

Additionally, the Center and Liaison concepts are good. However, there is no timeline given for when they should be up and running. Nor is any money budgeted towards them. Thus, I am of the belief that many agencies will not comply with this portion of the Executive Order in the near future.

One thing missing from the Executive Order is a call on reversing then Attorney General John Ashcroft's reversal of the Reno policy of discretionary disclosures. In the early part of the Clinton administration, AG Reno had stated a FOIA policy that released documents even if they were protected by a applicable FOIA exemption if the release would cause no foreseeable harm. Ashcroft revoked this policy early in the present Bush administration. Many critics have called upon current Attorney General Gonzales to revise this policy towards one that is more requester friendly. This policy is not discussed in the Executive Order.

Only time will tell if agency FOIA operations will actually improve because of this Executive Order. The passage of pending legislation as well as Congress giving more resources earmarked for FOIA operations would also go a long way towards improving the administration of FOIA throughout the Executive branch.