U.S. House committee discusses FOIA transparency

Following Tuesday's U.S. Senate hearing on the federal Freedom of Information Act, the House Committee on Oversight and Government Reform held a hearing Thursday on how the FOIA can boost government transparency and accountability. Committee members and witnesses agreed the government needs to be held accountable for the lack of transparency.

Committee Chairman Darrell Issa, R-Calif., set the tone of the meeting when he said: "Accountability is a problem." He described how "the committee’s experience to date reveals inadequacies in FOIA, as well as a disparity in FOIA compliance among federal agencies."

While Issa was critical of the administration, claiming "transparency is often the victim of electoral success," Ranking Member Elijah Cummings, D-Md., noted that the executive branch has showed improvements in transparency. He conceded that the Obama administration still needs to improve. To aid in remedying this problem, he introduced Thursday a bill entitled "Transparency and Openness in Government Act," which incorporates five bills that were passed by the House last year, but eventually died in the Senate. The bill includes measures reforming the open meeting law, the preservation of electronic records and other reforms.

Miriam Nisbet, director of the Office of Government Information Services, the federal FOIA ombudsman office, praised her organization's job of resolving disputes between FOIA requestors and executive agencies, along with encouraging "a more collaborative and accessible FOIA process for everyone in the FOIA community." Although some may define success only when both parties get exactly what they want, she said the goal of OGIS is to help the parties in some way, either by providing them with more information or by helping them understand the other party's interests.

Daniel Metcalfe, adjunct professor of law and executive director of Collaboration on Government Secrecy at American University Washington College of Law, and Tom Fitton, president of Judicial Watch, took a critical stance on the Obama administration. Metcalfe was "disappointed by the surprising slowness and incompleteness of the Obama administrations' new FOIA policy implementation." Metcalfe said the administration was conveying a "do as I say, not as I do mentality," meaning they encouraged openness while their "lead" government agency, the Department of Justice,"had a FOIA backlog that is worse than it was a year ago." Fitton expanded on the concept, saying "FOIA is ignored by this administration," and "the Obama administration gets a failing grade on transparency."

FOIA Exemption b(3), which allows the withholding of information prohibited from disclosure by another statute, was a significant topic of concern. Metcalfe said the problem is having a large number of existing statutes that are used by agencies to withhold information from FOIA requesters.

Rick Blum, coordinator of the Sunshine in Government Initiative, elaborated on this problem and expressed the need to create safeguards to ensure only narrowly tailored and necessary exemptions become law. He proposed the House "committee with jurisdiction over FOIA should receive [a] limited referral of provisions within legislation that propose[s] to create a new statutory exemption or amend an existing statutory exemption."

Angela Canterbury, director of public policy at Project on Government Oversight, suggested this committee should "ensure there is a study to explore options for a mechanism for bringing proposed statutory exemptions to light for full consideration, and to review the scope and utility of existing b(3)s."

The hearing also focused on the amount of funding needed to ensure FOIA is properly and effectively implemented. Rep. Lacy Clay, D-Mo., one of the original sponsors of the legislation that created OGIS, asked Nisbet if her organization's current funding is enough. Nisbet responded that whatever funding OGIS has will be enough to accomplish its goals. Blum disagreed, saying there were funding issues for OGIS and for the all agencies who need more money to staff officers who handle the FOIA requests.

Because all the witnesses mentioned that the executive branch needed to step up and do more to create an open government, Paul Gosar, R-Ariz., asked which agency was the worst in terms of compliance with FOIA. While Nisbet refused to answer, Metcalfe cited the Department of the Treasury, which Fitton had previously criticized, Blum said the Department of Defense, and Canterbury said the Security and Exchange Commission and the Department of Homeland Security.