Democracy's backlog: the Electronic Freedom of Information Act ten years later.

• Author: Ratish, Robert

1. INTRODUCTION

   Congress passed the Electronic Freedom of Information Act (EFOIA) amendments in 1996, in response to the technology that has changed the way the government collects, archives, and disseminates information. (1) At the time, proponents of the amendments recognized that this technology could help promote the goals of the original Freedom of Information Act. (2) Given the speed and ubiquity of the Internet, it would seem that technology would help improve access to government information. What once may have taken months of letter writing should now be achieved by filling out an online form and clicking a button. However, as technology has removed old barriers to public records access, it has created some new ones in their place.

   The EFOIA amendments to the Freedom of Information Act were intended to ensure disclosure among government agencies at a time when technology was changing the way agencies maintained records. After EFOIA became law, progress toward achieving its goals was slow. Despite notable improvements, some important goals have still yet to be achieved ten years later. (3) The reasons range from a simple lack of available resources to the seeming reluctance on the part of lawmakers and agencies to treat the task of public records maintenance as an essential component of a transparent, democratic government. This Note looks at the reasons why these problems exist and will suggest ways to improve on the EFOIA amendments. Part II examines the development of public records laws, the policy goals the laws were meant to serve, the political and technological environment that these laws reflected, and challenges the laws have faced up until the passage of the EFOIA amendments. Part III evaluates the impact of the EFOIA amendments, considers the data that has been collected and congressional testimony that has served to measure benchmarks in EFOIA progress, and analyzes the strengths and weaknesses in some current efforts to strengthen access to electronic government documents. Finally, Part IV focuses on ways that public access laws could be improved, a comparison of the ways other countries administer their public records access laws, makes suggestions on ways to ensure that the government uses available technology, and discusses how the current way of thinking about access to public records needs to catch up with technological advances.

2. HISTORY OF PUBLIC RECORDS LAW

   1. Pre-FOIA Legislation

      In order to understand the challenges that public records laws face, it is necessary to understand how the history of the laws reflects an evolution in the way legislators regarded public access. Public records laws were originally viewed as a means of organizing and archiving information. The first attempt at legislating the way the government handles public records came by way of the Administrative Procedure Act, passed in 1946. (4) However, the Act was not written as a means to ensure transparency and accountability; rather, it provided largely bureaucratic guidelines intended to facilitate housekeeping among the agencies by providing regulations for keeping records. (5) In fact, access was merely an afterthought, as became apparent in 1955 when Congress saw the need to clarify the new law to ensure that agencies would not interpret it as limiting disclosure. (6) It was around that time that Congress first considered passing what would become the Freedom of Information Act (FOIA). (7) With computer technology still in its infancy, it was unlikely that Congress could have anticipated the impact technology would have on public records. When legislators began considering an overhaul of the existing laws, the entire federal government owned only forty-five computers. (8) It was against this backdrop of paper-and-ink recordkeeping that Congress passed the Freedom of Information Act in 1966.

      In the debate leading up to the passage of FOIA, legislators recognized that the most important aspects of the Freedom of Information Act would be its provisions for judicial review of agencies that deny access to information. (9) It was hoped that this would put an end to what then chairman of the Special Subcommittee on Government Information Representative John Moss of California called, "the day-to-day barriers, the day-to-day excesses in restriction, the arrogance on occasion of an official who has a proprietary attitude toward Government." (10)

      The impetus for revising the public access laws came in part due to a campaign by journalists. (11) In fact, members of the media assisted in developing the Freedom of Information Act. (12) Journalists and public interest organizations often use FOIA in ways that have ultimately impacted policymaking. (13) But it is clear from congressional testimony like that of Rep. Moss, that FOIA was meant to do more than serve as a practical tool for journalists and others who rely on government information; it was meant to indicate a shift in the government's approach to public records away from a "proprietary" relationship to a more custodial relationship.

   2. The Passage of FOIA: As Much Access as Security Permits

      When President Lyndon B. Johnson signed FOIA into law, he spoke of the strong competing interests in developing open public records law: "This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation will permit. At the same time, the welfare of the nation or the rights of individuals may require that some documents not be made available." (14)

      FOIA specifies which documents agencies must make available to the public. (15) The Act specifically excludes the following categories of information:

      1) Information that is classified for national defense or foreign policy purposes;

      2) Information that relates solely to an agency's internal personnel rules and practices;

      3) Information that has been clearly exempted under other laws.

      4) Confidential business information, such as trade secrets;

      5) Internal government deliberative communications about a decision before an announcement;

      6) Information about an individual that, if disclosed, would cause a clearly unwarranted invasion of personal privacy;

      7) Law enforcement records, particularly of ongoing investigations;

      8) Information concerning bank supervision;

      9) Geological and geophysical information, such as maps. (16)

      A FOIA request typically starts with a letter sent to an agency. (17) The requester should then receive an acknowledgment from that agency. (18) The statute requires that the agency respond within twenty days of receiving the request. (19) However, an agency can extend the time limit for ten days where "unusual circumstances" exist. (20) Unusual circumstances may include the need to gather documents from different offices, a request for a voluminous amount of information, or the need to consult with other agencies. (21) If the agency needs to clarify a request, that agency may contact the requester. (22) The agency may release the requested document, parts of the document, deny the request, or find no documents that match the request. (23) A requester may seek an administrative appeal if he disagrees with the agency's determination. (24) If the agency denies appeal, or the requester disagrees with decision, FOIA grants the federal courts jurisdiction to hear the dispute. (25)

      FOIA creates a cause of action against an agency that denies documents. (26) However, challenging a FOIA denial in court usually requires exhausting any administrative appeals. (27) A court can find constructive exhaustion if the agency does not follow its statutory requirements, for example, by failing to reply to the document request or appeal. (28) The burden in FOIA cases rests on the agency that denies access. (29) By statute, courts may only grant injunctive relief against an agency. (30) Although monetary damages are not an option, the statute does provide for fee-shifting. (31) Courts will award attorneys fees if the prevailing party has "substantially prevailed" and is entitled to fees. (32)

      When Congress passed FOIA, its supporters heralded the legislation as providing the kind of judicial review that would ensure transparency in government. (33) However, this has not always been the case. The process of review can be costly and time consuming for the average requester without the resources of a media outlet or well-organized watchdog organization. While the law was written with the help of media companies that may have the resources to fight a denial, the landscape has changed significantly since the 1960s. Today, computers and the Internet make it easier for individuals to request information by email and through online research that may lead them to seek out additional information that is not readily available through agency websites. Furthermore, the media itself has changed. The advent of weblogs has changed the definition of journalists and enabled those with scarce resources to publish journalistic pieces for mass consumption. Even with the fee-shifting provision provided in FOIA, an individual would be taking a chance by initiating litigation over a denied request.

      Congress recently sought to address some of these concerns by passing the Openness Promotes Effectiveness in our National Government Act of 2007 (2007 OPEN Government Act). (34) Among other improvements to FOIA, the OPEN Government Act refined the definition of a media requester for the purposes of determining search fees to include internet journalists and bloggers, and lowering the standard that a requester must meet under the fee-shifting provision. (35)

   3. Amendments to FOIA and Related Legislation

      Passage of FOIA may have represented a significant shift in the way Congress viewed public information, but not all government agencies embraced this change. As a result of continued problems accessing government records, and in the wake of the Watergate...