This is Part 4 of a 5 part series on the government’s silence of silence and the Freedom of Information Act (FOIA). Parts 1, 2 and 3 can and should be read first:
In brief, these articles describe how scientific research gathered by the United States government is often withheld from the general public, a type of action that can quite literally put lives at risk. The Freedom of Information Act (FOIA) was passed to allow public access to these records, but we discovered that for a number of reasons, the George W. Bush administration was overly eager to deny such requests.
Many of those critical of the Bush administration’s handling of FOIA requests hoped that the situation would improve under the Obama administration. In fact, one of the new President’s first actions in office was to issue the following instruction, essentially reversing the Ashcroft Memo:
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.
This memo was part of Obama’s Open Government Initiative, “committed to creating an unprecedented level of openness in Government.” Yet surprisingly, government transparency barely improved from the Bush administration and, according to some journalists, got worse. A full 30% gave him a grade of poor to very poor. Recently, OpenTheGovernment.org released an assessment saying that many sophisticated users of FOIA remain tremendously disappointed with the law’s implementation.
There are between 600,000 and 650,000 FOIA requests per year. While less busy agencies can respond within a few weeks, larger agencies like the Department of Defense are flooded with more requests than they have the resources to meet. In these cases, FOIA compliance has effectively become an unfunded mandate. The situation is worsened by the fact that many agency employees are overworked, undertrained, and generally unclear of their obligations under FOIA.
A Bloomberg News investigation last year set out to test the quality of current FOIA compliance. A team of reporters submitted the same FOIA request, for the travel expenses of top agency officials, to 57 agencies. 19 of 20 cabinet-level agencies did not comply within the mandated 20 day window. Even “well past that legal deadline,” about half of the agencies had still not fulfilled the request.
In some cases information is available, but in a form that mitigates its usefulness. Despite Obama’s promise of an online data repository, many information requests still need to be made in person. A significant number of records remain incomplete or redacted. Often data is not in a convenient format like PDFs or tables. Nonuniformity abounds. At the SEC there are different record systems in every department.
There is no uniform method to submit a FOIA request. Some agencies accept submissions by e-mail and others by fax. Some ask the user to complete a web form. Requests to the IRS must actually be sent by post.
Despite President Obama’s vow to “restore science to its rightful place,” scientists who wish to reach out to the public about their research findings were routinely prohibited by public affairs, removing the power of interpretation from data that rarely speaks for itself. They are often denied the right to review, prior to publication, the final versions of reports to which their names are attached or to which their research contributed. Even their ability to obtain access to drafts and revisions of such reports is limited.
The need for scientists to comment on their research is exemplified in the case of the Safe Water Drinking Act. Even though this act requires water utilities to “directly” issue customers water quality reports, the reports are often so technical as to be practically useless. (A water utility proposal to only issue the reports online would further disenfranchise those without Internet access.)
Even if adequate information is ultimately disclosed, delays can mitigate its usefulness. An environmental assessment of TransCanada’s controversial Keystone XL pipeline was criticized by many as giving insufficient consideration to its effects on the climate. The report’s integrity was further compromised when it was discovered that the authors had not only been previously employed by TransCanada, but had published a similarly positive assessment of a Peruvian liquified natural gas pipeline which has since racked up an abysmal environmental and social track record.
These and other concerns were meant to be addressed during a 45-day public comment period, but the State Department (which commissioned the report and has final say on the pipeline’s approval) declined to release those comments, a practice that is routine at other agencies. A FOIA request was submitted, but when an approval decision is expected in the “near term,” any delay in meeting the request can limit the public’s ability to meaningfully influence the outcome.
In fifth and final part of this series I describe how it's not all doom and gloom! I will outline some of FOIA's successes as well as highlight improvements that offer hope for the future.