At 50 Years, Sunshine Law Looks a Bit Murky

(CN) — President Barack Obama recently signed a law to improve the Freedom of Information Act, but the Senate Judiciary Committee heard Tuesday that the all-time low for unfulfilled requests occurred just last year.

The committee chaired by Sen. Charles Grassley, R-Iowa, convened this morning to look at FOIA 50 years after its adoption by President Lyndon Johnson.

"Over time, the government has found waits of undermining FOIA," Johnson said. "We still find a culture of secrecy, in both Democratic and Republican administrations. The Obama administration set a new record in 2015 for failing to fulfill FOIA requests. And several of his top officials used personal email accounts to avoid having their communications on the public record."

Grassley's thinly veiled dig at former secretary of state Hillary Clinton came as the presumptive Democratic nominee for president rallied in New Hampshire with Sen. Bernie Sanders.

Republicans have been abuzz for the last week after the FBI recommended no charges against Clinton for her careless handling of classified State Department emails.

Though FBI Director James Comey saw no criminal intent, the State Department is conducting its own probe of the controversy.

Rick Blum, director of the Sunshine Institute, testified before the committee about the unacceptable length of time it takes for FOIA requestors to get a reply.

"Journalists who use FOIA have to anticipate doing something with the requested information months or even years down the line," Blum said.

With federal agencies facing more than 700,000 requests per year, FOIA lawsuits have increased 56 percent in the last 10 years. Many of these cases note that the requestor is still waiting on a response from the government.

The Sunshine Institute has documented hundreds of journalism articles based on FOIA information that forced government action.

Blum cited a journalist who requested the test results that showed armored vests being sent to soldiers in Iraq had failed ballistics tests. A day after the journalist called the government for comment, the vests were recalled.

David Cullier, an associate professor at University of Arizona School of Journalism, laid out the work still to do.

"FOIA has become a tool of secrecy," Cullier said. "Agencies are gaming the system, hiding information from the public, like information on unsafe drinking water, and unnecessary spending."

A onetime president of the Society of Professional Journalists, Cullier echoed Grassley's criticism of the current administration.

"The Obama administration has set new records on secrecy," Cullier said. "They are stamping 'No' more frequently, even as they process requests faster. Seventy-seven percent of the time, people are told 'No,' or that the government can't find it."

Cullier continued: "Let's make FOIA great again."

He urged the committee to add enforcement mechanisms for violations of the FOIA, citing states like Washington and Texas that impose sanctions for violations of public access laws.

"There should be penalties for violating the law otherwise it can be ignored without repercussion," Cullier said.

To improve accountability, President Obama signed the Freedom of Information Act Improvement Act of 2016 into law on June 30, 2016.

The law places a 25-year sunset on FOIA's deliberative-process exemption, and requires the government to create a central FOIA website for requestors to submit their request and track its progress.

It also strengthens the independence of the Office of Government Information Services that serves as a liaison between requestors and agencies.

Law professor Margaret Kwoka told the committee blamed the long delays in getting a FOIA response largely on the use of the FOIA by commercial requestors — companies that index federal documents and resell them at considerable profit.

"The news media make up a tiny percentage of requestors," Kwoka said. "The bulk of requestors are commercial requestors, whose use of the law was unanticipated. Commercial requests promote private interests, not the public. Via FOIA requests, businesses seek information about their competitors, lawyers about their clients, and companies complete due-diligence requirements."

An assistant professor at the University of Denver, Kwoka noted the thousands of requests that the Food and Drug Administration receives for facility-inspection records.

These create a huge workload for the agency, but the FDA could pre-empt the need for processing these requests individually if the documents were made public automatically.

"Affirmative disclosure would pre-empt the need for the private profit-seeking industry," which she described as "clogging" the system, Kwoka said.

Blum added: "The private entities are doing what the government should be doing it — indexing it, making it searchable."

Miriam Nisbet, former director of the Office of Government Information Services, called Obama's new law a good step to increasing FOIA compliance.

She lauded the legislative mandate requiring agencies to use an online portal such as FOIA Online, which will allow agencies to track their backlog.

Nisbet also noted that the increased independence of the FOIA ombudsman will allow the OGIS to submit recommendations to Congress without first getting agency approval — which in the past resulted in sometimes tense negotiations with agencies seeking to water down their disclosure requirements.

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