Officials cite EFOIA progress; journalists and citizen group see problems

Thursday, June 15, 2000

WASHINGTON — Office of Management and Budget and Department of Justice officials say the government is making excellent progress in implementing the Electronic Freedom of Information Act (EFOIA), but two journalism organizations and a citizens' advocacy group paint a decidedly different picture.

At a hearing Wednesday before the House Subcommittee on Government Management, Information and Technology, the witnesses' views of federal compliance with the EFOIA statute were sharply at odds, depending on whether they were inside or outside the government.

Joshua Gotbaum, executive associate director and controller of the OMB, said his agency, which is charged with general oversight of compliance, thinks the administration is moving forward “with a vengeance” to get information online and take advantage of the technology revolution. The progress is so impressive, Gotbaum said, that the “snail mail” approach of requesting information through a written FOIA request soon may be a thing of the past.

“I think the agencies are making excellent progress in putting information on the web,” agreed Ethan Posner, deputy associate attorney general in the Justice Department, which is charged with educating other agencies about the provisions and requirements of EFOIA. “The agencies will continue to focus on putting more and more information on the web, which we hope in the process will reduce reliance on FOIA.”

But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, and Ian Marquand, head of the Society of Professional Journalists' Freedom of Information Committee, said lengthy delays, incomplete information, and overly broad interpretation of privacy exemptions still make the FOIA statutes unreliable sources of information for journalists.

“Many reporters will not use the FOIA Act claiming that they cannot get information in time for it to be useful,” Dalglish said. “If reporters who cover the federal government must rely only upon the recollections of government officials —or upon leaks of information — and not on government records, they cannot adequately report the news to the public.”

“It is clear that implementation of EFOIA is an unfinished story,” said Marquand.

Marquand said a quick electronic survey of journalists around the country to prepare for his testimony identified a number of government web sites that drew praise from reporters. Included in that group were the Census Bureau, the Centers for Disease Control, the Federal Aviation Administration, the National Transportation Safety Board and the Nuclear Regulatory Commission.

But the reporters also singled out several agency web sites such as the Federal Bureau of Investigation, the State Department and the Bureau of Labor Statistics for sharp criticism, Marquand said.

Dalglish said the government's scientific agencies routinely get the greatest praise from reporters that her group deals with. The National Park Service, NASA, the National Oceanic and Atmospheric Administration, the Transportation Department and the Environmental Protection Agency win compliments for the accessibility of their information, she said.

But Marquand said his group heard from a journalist who found a report posted on the EPA website that showed air pollution in Indiana to be worse than air pollution in California, — but that was not the case, because the agency failed to file the explanatory footnotes along with its report.

Patrice McDermott, an information policy analyst with OMB Watch, a nonprofit research and advocacy organization, said a recent study of 144 federal EFOIA web sites at 64 agencies showed that overall compliance was “overwhelmingly inadequate.”

Although FOIA information is easier to find online than it was two years ago, McDermott said more than one third of the web sites do not have links from the agency's home page so citizens have no uniform way of requesting information from the government. Often information that does get posted online is unorganized and difficult to find, she said, and neither the OMB nor the DOJ has forcefully emphasized the importance of compliance with the law.

Dalglish also cited several examples where the government's excessive use of the privacy exemption has not only denied journalists and other individuals information they should have been able to obtain but also has created a situation where perpetrators of crimes get more consideration than their victims.

For example, she said, former AP reporter and longtime Mideast hostage Terry Anderson was denied information about his kidnappers without their written release because of concerns it would violate their privacy. After some publicity, the privacy exemption was dropped, but the information is now being withheld from Anderson on the grounds it is classified, Dalglish said.

And when Jack McNamara, editor of the Nimby News in Texas, tried to get details on the former local sheriff who pleaded guilty to federal charges after agents seized his horse trailer containing 2,500 pounds of cocaine, he couldn't get that information from the Justice Department. The agency said disclosure would have intruded upon the sheriff's privacy.

Subcommittee chairman Rep. Stephen Horn, R-Calif., said he found the Nimby News example infuriating, especially since McNamara did not appeal the finding because of the expense of the proceeding.

“That's so stupid,” Horn said. He also expressed distress that some organization didn't step forward to take on McNamara's appeal because “someone should have made a case of that.”

When Horn and Rep. Doug Ose, R-Calif., tried to get the OMB and the DOJ representatives to identify recalcitrant agencies or respond to the complaints lodged by the media groups and OMB Watch, the witnesses refused. Both Posner and Gotbaum said they would file written responses with the committee at a later date.

“I don't have names for you now,” Posner said when asked for the best and worst examples of implementation of the FOI statutes. “There are some sites we would like to see updated and made more user friendly.”

Horn did get an update on efforts to reduce the backlog of FOIA requests pending at the FBI, which is frequently singled out as being one of the worst government offenders in terms of both time delays and privacy exemptions. Posner said the FBI “has made extraordinary progress” in reducing its backlog of FOIA requests from 15,000 to 5,000 in the past two years.

“It really is an extraordinary success story,” he said, although he acknowledged that it still takes a long time for the agency to process a request.