U.S. Sunshine Week Brings Legislation, Many Reports

14 March 2013

Sunshine Week in the United States March 11-15 prompted congressional hearings, new and recycled legislative proposals and numerous reports on the status of freedom of information.

In the House of Representatives, a draft FOI bill was offered by Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) and Ranking Member Elijah Cummings (D-Md.), a rare show of bipartisanship. [The legislation was passed by the committee on March 20. See committee report issued later for more details.]

Their bill would require agencies to only withhold information if the disclosure could cause foreseeable harm. Agencies would have to post online all releasable information requested three or more times and to report how many records it made available proactively. Also, “All raw data in agency FOIA reports will be available online in an accessible and fully useable format,” a summary of the bill says.

The bill would establish a pilot program to review FOIAonline, a public portal that allows requesters to submit FOI applications to some agencies and mandate its use government-wide. The Office of Government Information Service (OGIS) would be granted increased independence.

The act would provide for a uniform 90 days to file FOI appeals. Agency would be given 180 days to update their FOIA regulations. A Chief FOIA Officer Council would be created to review FOIA compliance and discuss improvements. 

The House committee held a hearing on government transparency March 13. Testimony and video available here.

Sen. Jon Tester (D-Mont.) also offered legislation, reintroducing the Public Online Information Act (POIA), a bill that would require government agencies to put information online in user friendly formats.

The Senate Judiciary Committee held a hearing March 13 on FOI. (See a report in Unredacted, the blog of the National Security Archive, the sponsor of FreedomInfo.org.)

A revised government-wide audit published by the National Security Archive report said “a clear majority of federal agencies have failed to update their Freedom of Information Act regulations to comply either with Congress’s changes to the law in 2007 or President Obama’s and Attorney General Holder’s changes to the policy in 2009.

The Congressional Research Service report issued March 8, “Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress.”

More Reports Issued

In a report released March 10, the Center for Effective Government said the Obama administration established “an impressive array of important open government reforms,” in the words of Sean Moulton, Director of Open Government Policy at CEG. “However, the actual implementation of open government policies within federal agencies has been inconsistent and, in some agencies, weak,” the watchdog group said.

Another CEQ report, issued March 12, found that agencies processed over half a million FOIA requests in 2012. “In about 41 percent of these cases, the information requested was released “in full” with no parts “redacted” – i.e., clean, complete documents with no blacked-out parts were provided to the person who requested the information.”

“Overall, requests for public information peaked in the last years of the Clinton administration, fell steadily during the Bush administration, and began to rise in the first term of the Obama administration. Agencies received 11,000 more requests in 2012 than in 2011, and yet processed 39,000 more requests than in 2011; more than 512,000 FOIA requests were processed in 2012,” according to the report. Nearly 12,000 fewer requests were pending at the end of 2012 – a 12 percent decline from 2011, mostly because of the Department of Homeland Security,” according to a summary of the report.

CEG also reported:

Although the number of unprocessed requests has declined, the use of partial releases increased in 2012. Partial releases began increasing during the Bush administration, and the Obama administration has not reduced the practice. In fact, between 2008 and 2012, the percentage of FOIA requests that were partially granted grew by almost seven percent to nearly 54 percent. Because outright denials were infrequent, the increase in partial releases resulted in a decline in the release of full documents. The percentage of fully granted FOIA requests rose in 2010 but dipped in 2011 and fell further in 2012 to the lowest level on record – just under 41 percent of FOIA requests processed provided full and complete information to the requester.

In 2012, agencies claimed exemptions significantly more often than in the previous year. Three categories accounted for over 70 percent of all exemptions: personal privacy, law enforcement personal privacy, and law enforcement techniques for prosecution. Each was used about 100,000 times in 2012.

The use of the internal rules exemption, once among the highest-used exemptions, was almost entirely eliminated (92 percent reduction) after a U.S. Supreme Court ruling limited how broadly the exemption could be applied. However, a significant increase in the use of the interagency memos exemption suggests that some agencies may have expanded their use of this exemption to withhold records that had previously been claimed as internal rules.

OGP Commitments Largely Achieved

Another report found that the U.S. “met most of its 2011 commitments to make the government more open and accountable” made in its first Open Government Partnership National Action Plan.

“While the Plan reflected many of the priorities of open government advocates, the specific commitments included in the plan do not put the U.S. on a path to accomplish those goals quickly,” according to a March 12 statement by OpenTheGovernment.org. The report is based on evaluations of the government’s efforts by teams of volunteers from thirty-seven civil society organizations and academic institutions.

Report on State Legislative Websites

Open States evaluated state legislative websites. Six criteria are used to compare each state, based on six of the Ten Principles for Opening Up Government Information: completeness, timeliness, ease of access, machine readability, use of commonly owned standards and permanence.  “We omitted four of the original ten criteria (primacy, non-discrimination, licensing and usage costs) that tended not to present serious differences between states.”

Evaluating each state on each criteria was a large task, and with community support we ensured that each state was evaluated by multiple people.  After the evaluation was complete, we converted the qualitative data on how a state performed to numeric scores (specific scoring details are available on the report card itself). After summing these scores, states were also assigned a letter grade according to where they fell among their peers.  A state with a net score below negative one was given an F, a negative one or zero became a D.  With the average total score among states being a 1.5, we gave states with a net score of one or two a C, three became a B, and four and above became an A.

Sunshine Week Events

The 15th annual National Freedom of Information Day conference to be held at the Newseum March 15 will feature a keynote discussion with noted First Amendment attorney Floyd Abrams, subject of a new book by author and law professor Ronald L.K. Collins. There will also be a discussion of a soon-to-be-released video documentary, “Whistleblowers.” For more, and to see the webcast live, visit here.

In another Sunshine Week event, Citizens for Responsibility and Ethics in Washington (CREW) and George Washington University Law School Professor and Lerner Family Associate Dean Alan Morrison discussed “OLC Memoranda: Does U.S. Secret Law Threaten Our Democracy?” The discussion was on whether and when the government is justified in keeping Office of Legal Counsel (OLC) opinions secret, See the video.

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