Legislation can accomplish only so much when up against "an instinct of secrecy," says Sen. Chuck Grassley.
A bipartisan group of senators is looking to jumpstart open government legislation that flagged in the waning days of the last Congress. The FOIA Improvement Act of 2015 would expand the proactive disclosure of government documents, waive fees for Freedom of Information Act requesters who are not served on deadline, and require the government to set up a one-stop online portal for filing requests to government agencies, rather than the current piecemeal approach.
Three of its key backers -- sponsor John Cornyn (R-Texas), Chuck Grassley (R-Iowa), and Patrick Leahy (D-Vt.) -- checked in with key FOIA enforcers at a hearing of the Senate Judiciary Committee to find out how the administration was doing in complying with existing FOIA requests.
"But legislative reforms can only go so far," Grassley said at the hearing. "Experience shows that many in government continue to operate with an instinct of secrecy. This has been the case under Democrat and Republican administrations, as both have failed to live up to the letter and spirit of FOIA."
Government witnesses pointed to an increase in FOIA requests and a shrinking workforce. In fiscal 2014, the most recent year on which data is available, 3,838 full time staff worked on FOIA across government, the lowest number in six years, according to a report from the Justice Department Office of Information Policy. Melanie Ann Pustay, who heads OIP, told the committee that workforce challenges and a "record high number of incoming requests" led to a rise in the backlog of unfulfilled requests.
According to data from the report, the unanswered request backlog grew 55 percent between from 2013 to 2014. Additionally, reversals on FOIA appeals reached their highest level in five years.
Concurring with Grassley, Karen Kaiser, general counsel at the Associated Press, said the slowly grinding gears of FOIA requests have more to do with culture than policy.
"The reflex of most agencies is to withhold information, not to release, and often there is no recourse for a requester other than pursuing costly litigation. This is a broken system that needs reform. Simply stated, government agencies should not be able to avoid the transparency requirements of the law in such continuing and brazen ways," she said.
Kaiser also strongly backed the provision in the bill to build a single online portal for requesters. "Such a system would help agencies better monitor and manage their FOIA responses, allocate resources, and communicate with other agencies as needed. It would vastly improve the use of limited agency resources and would free up FOIA officers to respond to substantive requests in a timely manner," she said.
The AP is currently pursuing a FOIA lawsuit against the State Department for access to former Secretary Hillary Clinton's emails.
The State Department's top FOIA officer, Assistant Secretary for Administration Joyce Barr, was at the hearing, ostensibly to discuss State's lagging FOIA response record. However, some senators were more interested in the Clinton emails.
Despite persistent questioning from Cornyn, there were no new disclosures about how the department dealt with Clinton's now-notorious private email server for the purposes of FOIA processing. Barr said it was "not acceptable" practice under current rules for agency employees to use a private email system for government business.
"I think that the actions that we've taken in the course of recovering these emails have made it very clear what people's responsibilities are with regard to record-keeping. We continue to do training, we've sent department notices, telegrams, we've talked to directors and I think the message is loud and clear that that is not acceptable," Barr said. A 2014 update to the Federal Records Act put new restrictions on government use of private or personal email systems and accounts, but it was not in place when Clinton served as secretary.
Regardless of the letter of the law, Thomas Blanton, who heads the National Security Archive at George Washington University, said it was "wrong" for Clinton to circumvent agency systems.
"It's wrong because in this specific instance you had the head of a federal agency doing it who is responsible under the Federal Records Act for records systems that preserve agency records," Blanton said. Nonetheless, Blanton noted that given the records management practices at the Department of State and across government, it's possible that Clinton did archivists an unintentional favor.
"We're probably going to end up with more preserved emails from those materials handed over by Ms. Clinton because she had them on a private server, than if she had kept them all on a State.gov system, because the State.gov system was totally broken, and that is a tragedy. That is a commentary on recordkeeping and something we've got to change," Blanton said.
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