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Home > Publications > Quill > FOIA after forty


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Friday, September 1, 2006
FOIA after forty

Four decades after the federal open records law was signed, some say government is more secretive than ever

By Brea Jones, Pulliam/Kilgore intern

Offices throughout Washington, D.C., house a league of Freedom of Information Act activists who have been fighting for government transparency for decades — some since FOIA’s inception 40 years ago.

In honor of the act’s birthday, the experts graded federal agencies and found that public records aren’t as available as they should be, there is little funding for staffing and supplies, and backlogs are a growing problem in some agencies.

Following an executive order in December 2005, federal agencies reviewed how long it takes to process requests, the costs of FOIA and how agencies use information technology.

But most agencies disappointed access activists by not reviewing the way materials are classified.

Agencies often label materials “sensitive but unclassified.” The classification has been used to withhold records that should be public, said Patrice McDermott, director of OpenTheGovernment.org.

Classifications were set up decades ago, but they were resurrected following the Sept. 11, 2001, terrorist attacks, she said.

“Of course under the classification system, agencies are barred from using it to protect embarrassing information,” said McDermott, who has been following access issues since 1994.

But it happens anyway.

The Washington Post obtained a memo in June, classified as SBU, with the subject “Snapshots from the Office: Public Affairs Staff Shows Strains of Social Discord.” Every paragraph of the six-page memo from the U.S. Embassy in Iraq is marked SBU.

The memo included concerns from Iraqi employees. Women said they were increasingly harassed about attire. Men no longer wear shorts or jeans in public. Some staff won’t take home their American cell phones or tell their families they work for the embassy due to rising fears. Further, the public affairs office has been unable to use local staff to translate for on-camera media events for at least six months.

Five days after this was published, the State Department’s Information Systems and Services Office reminded agencies that the SBU designation does not alone prevent a records release under FOIA, according to The Post.

The use of SBU designations differs from agency to agency, but the White House has asked that federal offices standardize their classifications.

McDermott isn’t sure if this will help or hurt journalists.

Some agencies that typically release records might withhold more information if classifications are standardized. However, standardizing could also create a process for challenging and appealing information that isn’t released.

Bills aim to boost open government, FOIA

Because the December 2005 order has no funding or enforcement, McDermott doesn’t think the executive order is going to do much for the access community.

Furthermore, the order may be enough appease the public and sidestep legislative reforms proposed by U.S. Sens. Patrick Leahy, D-Vt. and John Cornyn, R-Texas.

“At least legislation would have teeth,” McDermott said.

The OPEN Government Act was introduced Feb. 16, 2005, and applies penalties to agencies that do not meet deadlines.

If an agency doesn’t respond to a requester within 20 days without evidence of a reason for the delay, it cannot withhold information for any exemption other than privacy or national security.

“This puts the burden on the agency,” said Pete Weitzel, Coalition of Journalists for Open Government coordinator.

The senators’ Faster FOIA Act of 2005 would establish a commission on FOIA processing delays. This bill was introduced in March 2005.

But legislative reforms haven’t always worked.

The 1996 Electronic FOIA amendments were supposed to open databases to public inspection and give the public access to information on the Web.

“The requesters have become more sophisticated as a whole about asking for useful records and pinpointing more electronic records, and the agencies have become more skilled in citing reasons about why they are unable to provide those records,” said Michael Ravnitzky, who has been following FOIA for 20 years.

The amendments also require agencies to post frequently requested information on the Web.

But 10 years later, compliance is on an agency-to-agency level.

“It’s been put on the back burner,” Ravnitzky said.

Some of the E-FOIA problems could be administrative, he said.

The people who process FOIA requests and the people who post files on the Web are often in different offices.

Backlogs grow in agencies

The agencies that hold records of public interest — FBI, Central Intelligence Agency, Food and Drug Administration — have the worst backlogs, said Harry Hammitt, who has been following FOIA since 1976 and has been editing Access Reports (www.accessreports.com) since 1985.

“It’s with agencies that get a substantial number of requests and don’t have the resources to deal with it,” Hammitt said.

Public reporting of the backlog began in 1998, but backlogs have been a problem since the law began.

The backlog increased from 20 percent in 2004 to 31 percent in 2005, according to a Coalition of Journalists for Open Government survey of 22 agencies and departments.

Coordinator Weitzel said the survey showed requesters are getting less information from the agencies, they are responding favorably less and it’s taking longer to get a response than in 2004.

“There’s no question that this administration has been much more controlling of information and much less prone to make information public,” he said.

Before FOIA, each agency decided on its own what was public. Weitzel said that attitude is becoming pervasive in federal agencies without the public noticing.

“Washington is a long way from most people and most people’s lives and the necessities people need from government on a daily or ongoing basis.”


Brea Jones, a 2006 graduate of California State University in Chico, is the Society of Professional Journalists’ Pulliam/Kilgore intern at the Society’s headquarters in Indianapolis. She recently accepted a job at The Record in Stockton, Calif.

Editor’s note: The Society of Professional Journalists is a member of OpenTheGovernment.org and the Coalition of Journalists for Open Government.

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