Are Agencies Releasing Less Information under President Obama?

A recent report we released with Citizens for Responsibility and Ethics in Washington (CREW) used data collected annually by the Department of Justice (DOJ) in agencies’ reports on Freedom of Information Act (FOIA) processing. This data is supposed to allow the public to assess the effect of the Obama Administration's FOIA policy on agency practice. Unfortunately, though, we were only able to come up with a partial answer to the question of whether or not agencies are following the Administration's policy.

On his first day in office President Obama committed his Administration to creating an "unprecedented level of openness in Government." As part of his effort to open government, President Obama directed agencies that FOIA "should be administered with a clear presumption: In the face of doubt, openness prevails." Attorney General Holder echoed these words in his March 2009 memo.  The Obama Administration policy is in stark contrast to policy under the Bush Administration, which urged agencies to withhold information in the face of doubt.

To complete our analysis of the effect of the policy change, we used data from fifteen large agencies' annual FOIA reports from Fiscal Year (FY) 2008 and FY 2010. The indicators we were able to compare revealed mixed results: agencies generally processed more requests more quickly under President Obama, and agencies used more exemptions to withhold information under President Obama.

Our report does not address what would be one of the best indicators, however, because to date agencies are not collecting it: the number of discretionary releases made. In the FOIA world, when an agency opts to release information that could be withheld it is called a discretionary release. In our report, we suggest that DOJ begin requiring agencies to report the number of discretionary releases. If this metric were captured in annual reports and made public, it would be easier to tell if an agency is working under the “presumption of openness” the Obama administration’s policy requires.

Whether or not agencies are following the Administration's policy is not just a matter of interest to a couple of good government organizations: Part of Congress' job is to oversee how agencies are fulfilling their duties under laws like FOIA; journalists, researchers, advocates and any member of the public who is simply interested in knowing what the government knows about something all have an interest in how well agencies respond to their requests for information. Of course, the Administration also should care about whether or not agencies are doing what they tell them to do. DOJ and the Administration need to make sure they are collecting data in the annual FOIA reports that are meaningful and relevant.

Below are some additional new and modified metrics we suggest DOJ begin collecting to improve FOIA oversight:

  • Data relating to the Office of Government Information Services (OGIS). OGIS was created by the OPEN Government Act of 2007 to, among other things, mediate disputes between requesters and agencies. Relevant data points include how many cases are opened and how many times agencies refer requesters to OGIS. 
  • Data on the number of times agencies change initial determinations on fee waivers. Over the last few years, FOIA requesters and litigators have noted an uptick in the denial of fee waivers by agencies for requesters who meet FOIA’s eligibility requirements for fee waivers. Adding this data point would provide more transparency into the way agencies are granting and denying fee waivers.
  • Modify the “Processing Time” metric. The way the data is currently collected leaves in unclear how long it takes an agency to search for responsive material to a FOIA request and prepare a response, and when people outside the agency are responsible for delays. The new metric should list: (1) the “Total Processing Time,” defined as the number of days since the date the request was received; (2) “User Delay,” defined as the number of days the case was on hold while the agency waited to hear from requester; (3) “Consult Delay,” defined as the number of days the agency waited to hear back from another agency on a consult; and (4) “Referral Delay,” defined as the number of days it took an agency to act on a referral made to it.

 

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