Hill analysis: Agencies' FOIA responses seem to have no guide

Government responses to Freedom of Information Act (FOIA) requests vary widely, with some federal agencies refusing to release data that others provide in a timely fashion, according to an analysis by The Hill.

More than six months ago, The Hill filed FOIA requests for over 70 federal agencies’ FOIA logs.

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The Hill sought the names of people who requested information, their affiliations and the subject of each FOIA request. While many departments and agencies provided all of the requested data, there was no consistent standard of transparency across the executive branch.

Some executive agencies sent FOIA logs with the requesters’ names, but without their affiliations. Other logs were handwritten. A few agencies complied with The Hill’s request in days, but most took months.

The agencies and departments that were the most responsive and thorough included the Department of Transportation, the Office of the U.S. Trade Representative and the Defense Contract Management Agency.

Among the worst were the Department of Health and Human Services (HHS), Office of the Director of National Intelligence (ODNI) and the Farm Credit Administration (FCA).

The government’s FOIA processes are not uniform, according to The Hill’s analysis. Some departments require signed letters that must be sent through the mail, while others allow requests via the Internet.

“[The] results illustrate the inconsistencies in disclosures of information across agencies. There shouldn't be so much variation, and it raises concerns,” said Angela Canterbury, the public policy director of the Project on Government Oversight.

Federal agencies are permitted to redact personal information about private individuals under FOIA exemption (b)(6).

Defense and intelligence agencies, such as ODNI and the Defense Security Service (DSS), tended to disclose the least amount of information. ODNI redacted all names with no explanation,and DSS listed most subjects with opaque terms such as "interim denial."

Other agencies also redacted names and subjects under Exemption (b)(6), but made it clear why by listing subjects as "records on self."

The Centers for Medicare and Medicaid Services (CMS) also liberally applied Exemption 6, as almost every subject of each request was redacted from the FOIA logs provided to The Hill. While in some cases it was applied to protect the identities of private individuals, there was no indication of why the agency had applied the exemption in the other cases.

The Department of Health and Human Services (HHS) similarly responded by blocking out individual names while providing their affiliations. CMS is an agency housed within HHS.

“Other than for those individuals who were making first-party requests for records about themselves, [using Exemption 6 to withhold all requesters' names] is entirely improper and a careless violation of longstanding Justice Department policy,” said Dan Metcalfe, executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law.

Metcalfe, a former director of the Justice Department's Office of Information and Privacy, which oversees FOIA policy across the federal government, added, “The lack of uniformity is quite troubling, because uniformity of request treatment is one of the hallmarks of good government-wide FOIA administration."

Meanwhile, two agencies, the National Oceanic and Atmospheric Administration (NOAA) and the FCA, keep handwritten FOIA logs.

While the NOAA sufficiently detailed the names, affiliations and subjects of requests, the FCA said that it is “not practice to log FOIA requesters’ affiliations and agencies, as they would not be required to create or compile data in response to an individual’s FOIA request.” The FCA's logs provided names of requesters, but subject descriptions were vague, such as “congressional” or “policies and procedures.”

The 2007 amendments to FOIA require agencies to set up a tracking system and include detailed analyses of response rates in their annual FOIA reports, including the average, median and range of days it takes to respond to a request and to provide the granted information, as well as the median and average number of days to respond to administrative appeals.

These amendments create a daunting task for agencies without digitized FOIA practices. 

“Good luck to any agency that tries that without a computer,” Metcalfe said.

President Obama called for “an unprecedented level of openness in government” shortly after his inauguration, and has taken public steps to make transparency a trademark of his administration.

On his first full day in office, Jan. 21, 2009, he issued a memorandum to department and agency heads specifically ordering proper administration of FOIA requests.

“In responding to requests under the FOIA, executive-branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public,” Obama stated.

House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) has been critical of the Obama administration on FOIA. In January, Issa sent a letter to 180 federal agencies to release logs of requests from the past five years to review agencies’ FOIA practices.

Metcalfe said that FOIA practices had improved under the Obama administration, though, especially in comparison to its predecessor, which he gave low marks on transparency. "The Obama administration is far more transparent than the Bush administration. Bush's was a very easy act to follow.”

Canterbury, however, said it’s “a mixed bag.” 

“Overall transparency has improved under Obama, but there's still a wide gap between promise and practice. FOIA practices have not dramatically improved, and there is still far too much secrecy,” she said.


The Hill filed FOIA requests for over 70 federal agencies’ FOIA logs. Below are the agencies that were the most and least responsive.

BEST:

Defense Contract Management Agency

Department of Transportation

Federal Mediation and Conciliation Service

Occupational Safety and Health Review Commission

Office of the U.S. Trade Representative

U.S. Trade and Development Agency 

WORST:

Centers for Medicare and Medicaid Services

Defense Security Service

Department of Defense Education Activity

Department of Health and Human Services

Farm Credit Administration

National Oceanic and Atmospheric Administration

Office of the Director of National Intelligence


- Emily Cahn and Morgan Spencer contributed to this article, which was amended on June 21.


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