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Thursday, May 12, 2005

Justice Official Rationalizes FOIA Delays, Says They Are 'Intractable' for Some Agencies

A top Justice Department official told a House Government Reform Committee subcommittee yesterday that many federal agencies can't meet federal Freedom of Information Act (FOIA) deadlines and there is not much that can be done to improve the situation.

"Many federal agencies, especially those required to meet large-volume FOIA demands or demands for particularly sensitive records, are unable to comply with the statute's response deadlines for their FOIA requests and they maintain FOIA backlogs exceeding those lengths of time," Carl Nichols, Deputy Assistant Attorney General, told the Subcommittee on Government Management, Finance and Accountability.

The FOIA guarantees all citizens access to all federal documents, subject only to nine exceptions meant to protect factors like national security, law enforcement, personal privacy and commercial business secrets.

"The reasons for this struggle are multiple and largely intractable," he said. "First and foremost is the fact federal agencies have primary missions that place high demand on limited resource; this is especially true in the post 9/11 world. Such limited resources make it increasingly difficult for federal agencies, particularly the larger agencies, to administer FOIA with the timeliness all concerned would prefer."

Nichols claimed "no discussion about FOIA can be complete without a serious and sustained examination of the resources and personnel needs faced by the executive branch in administering FOIA."

Nichols added that even with such a discussion of staff and budget issues of FOIA administration, "both the complexity and magnitude of FOIA requests received by some federal agencies render strict compliance with the act's existing time limits a practical impossibility for them in any event."

Nichols was testifying as a member of the first of two panels appearing before the subcommittee yesterday in only the second congressional FOIA oversight hearing in nearly a decade. Rep. Todd Platts, R-PA, is chairman of the subcommittee. Sen. John Cornyn, R-TX, chaired the first such hearing earlier this year with Sen. Patrick Leahy, D-VT, as a Senate Judiciary Committee Subcommittee. Cornyn and Leahy are co-sponsors of the Open Government Act of 2005, which provides the first comprehensive reforms of the FOIA since its 1966 passage.

Nichols' testimony was notable for other reasons in addition to his declaration that complying with FOIA's 20-day response deadline is essentially impossible for some agencies. Cornyn told the subcommittee in a written statement presented for the record that Nichols' testimony appeared to reverse the Justice Department's previous favorable view of the Cornyn-Leahy proposal.

The proposal "holds the possibility of leading to significant improvements in the Freedom of Information Act," Justice had said on its web site earlier this year. Cornyn quoted that statement at the March 15 Senate hearing and noted that Attorney General Albert Gonzalez promised during his confirmation hearings to work with Cornyn and other senators on reforming the FOIA.

But yesterday Nichols offered no expression of support for Cornyn-Leahy and seemed to suggest instead that no FOIA reforms are needed. "All in all, FOIA is working about as well as might be expected as it enters its middle age," he said.

Nichols did explicitly express opposition to a provision of Cornyn-Leahy that would reverse a 2001 Supreme Court decision that makes it virtually impossible for FOIA requestors who sue the government to reverse a decision to withhold documents to collect attorneys fees. Cornyn told the subcommittee that failure to reverse the decision would prevent FOIA requestors without the resources for extended court fights from ever appealing a federal official's decision to withhold requested documents even when those documents clearly should be made public under the FOIA.

ANALYSIS:

Why is it government officials always claim lack of budget and staff explain their inability to do things they are required to do by the law? That claim is at the heart of Nichols' rationale for continuing increases in the number of backlogged - i.e. unprocessed - FOIA requests last year. A Government Accountability Office (GAO) study estimated the increase at 14 percent from 2003 to 2004. Federal agencies received a record 3 million FOIA requests last year, according to the Justice Department.

But there is more to Nichols' rationale than simply the same old bureaucratic song-and-dance of "we don't have enough money or people." Read Nichols' testimony carefully and it becomes clear that reason one is FOIA compliance just isn't a priority in the federal government. Nichols estimates federal agencies spend about $300 million annually on FOIA compliance. With a total federal budget of $2.3 trillion, the government spends 0.0013 percent of its budget on FOIA compliance.

That being the case, one must wonder why Nichols didn't suggest the subcommittee consider increasing the government's FOIA compliance funding. Instead Nichols said the the FOIA is functioning about as well as can be expected given its age, which suggests that's how the Justice Department wants it to stay.

Another way of looking at this issue is the staffing devoted by the Justice Department to insuring FOIA compliance. Nichols described his department as "the lead federal agency for FOIA" and said "we work to encourage uniform and proper compliance with the Act by all federal agencies through our Office of Information and Privacy, which is one of the department's 40 distinct components."

Nichols added that OIP has "a very experienced staff ... who contribute decades of experience in working with the FOIA and provide a perspective of long standing to any examination of its implementation."

That is all true but it is far from the whole story of OIP. According to U.S. Office of Personnel Management (OPM) data, OIP's staff totals only 42 people, including 19 attorneys, two paralegals, two legal occupations trainees, two management and program analysts, one office automation clerical, one secretary, two miscellaneous clerks and 13 miscellaneous administrative persons.

With a total workforce of 104,383, according to the latest available OPM data, OIP's 42 employees represent 0.0004 percent of the Justice Department's employees. With a total federal civilian workforce of 2.7 million full and part-time employees, those 42 OIP workers have their hands full indeed.

Let's not forget here, however, that every agency has additional employees devoted to FOIA administration. The Justice Department, for example, claims in its most recent FOIA annual report that its overall workforce devotes 562.52 work-years to FOIA activities. One work-year does not necessarily equal one employee because the government calculates total effort expended by full and part-time employees.

Even so, here's the bottom line: These budget and staffing resources represent a miniscule area of activity for the federal government's "lead agency" for FOIA compliance.