Those of you who regularly read my column know that I am commonly critical of the government in respect to its efficient administration of FOIA operations. For the record, during my tenure as a government attorney dealing with FOIA issues, I was also commonly critical of government administration of FOIA operations. When I could make the administration of FOIA better, I attempted to do so. I still speak regularly to various agencies, and freely offer my advice to better their FOIA operations.

Unfortunately, my efforts have usually been like shouting in the wind as I, as well as others (both in and out of government) who truly want to help make FOIA operations better, are up against a number of elements that stifle and continue to keep down agency FOIA operations.

The past eighteen months illustrates the range of these problems. New FOIA Legislation was introduced in the Spring of 2005 which acknowledged that the FOIA needed revisions to operate effectively. The legislation was introduced by Senator John Cornyn of Texas and had plenty of bipartisan support. Among other things, the legislation punished agencies for failing to meet statutorily mandated time deadlines and would have created a database to track all FOIA requests regardless of the agency to which it was made. Furthermore, the bill would create a FOIA ombudsman which would act as an arbiter to mediate disputes between FOIA requesters and agencies.

If this bill would have passed, it is likely that a new office that the agency that housed the FOIA omsbudsman would have amassed a great deal of power in the FOIA world as it would create a body of administrative law that all agencies would then have to follow. This of course would usurp the power of the Office of Management and Budget and the Department of Justice, both of whom now are the final arbiters of FOIA policy in the federal government. It would also take power away from agencies like the Securities and Exchange Commission who have independent litigating authority and can defend their own FOIA lawsuits without reliance on (and the following of policies set forth from) the Department of Justice. Thus, it was in these agencies interests to defeat the proposed FOIA bill. And they did.

Last December, an Executive Order (Executive Order 13392) was signed by the President. In my opinion, The Executive Order effectively killed any chance that any meaningful FOIA legislation will pass during the sitting of the current Congress. This is because the Executive Order acknowledges that there is a problem but makes a promise to find a solution. The solution offered is that each agency would name a high level Chief FOIA Officer, and the Chief FOIA Officer would then study FOIA Operations and
Issue a report on how the agency planned to improve its FOIA operations.

Agencies named their Chief FOIA Officers. As I wrote in February of this year, many of the Chief FOIA Officers named showed agencies did not intend to take the Executive Order seriously. This was because the Chief FOIA Officer was supposed to be "a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency." However, the list of Chief FOIA Officers available at the Department of Justice's FOIA website demonstrated that some agencies did not meet this requirement

The next way that the Executive Order was sabotaged was via the guidance issued by the Department of Justice. By issuing a guidance only a few weeks before the reports were due, and not prioritizing areas of FOIA improvement, in my opinion backlog reduction, which is much more important than improving customer service, was again disregarded. And just as I thought, the reports, which were a start, didn’t go into the detail needed to really fix the core FOIA problems at most agencies.

I believe FOIA operations will not significantly improve until:

1. the Congress passes legislation that ties up lose ends caused by the march of technology and fully funds FOIA operations at agencies to reduce backlogs; and

2. High level agency officials support FOIA Offices in their agencies by making sure they get the support they need on the various troublesome issues in those agencies. Hopefully someone will get the message and a real effort to improve FOIA operations in the near future.