The Freedom of Information Act:Holding Government AccountableDaniel PengDecember 15, 2005Contents1 Introduction 12 The Fiction of FOIA Accountability 23 The Problem: Legal basis and empirical evidence 33.1 Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.2 Improperly withheld and redacted records . . . . . . . . . . . . . . . . . . . 63.3 Administrative Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . 93.4 Government Motivations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 The Solution: Imposing consequences and accountability 164.1 Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174.2 Tracking and computerization . . . . . . . . . . . . . . . . . . . . . . . . . . 194.3 Improperly withheld and redacted records . . . . . . . . . . . . . . . . . . . 205 Conclusion 221 IntroductionA democracy works best when the people have all the information that the securityof the nation permits. No one should be able to pull curtains of secrecy arounddecisions which can be revealed without injury to the public interest.— President Lyndon B. Johnson, signing FOIA into law.Concerned citizens have long hailed FOIA as a cornerstone of government transparency;however, the reality is that FOIA’s implementation doesn’t live up to this promise. First,legal loopholes mean that government agencies are not responsible for responding to FOIArequests on time, so requesters experience interminable delays in trying to access governmentrecords. Secondly, if the records are politically sensitive or reveal administrative wrong-doing,government agencies will seldom give them up without a fight; ironically, this is where FOIA1could be most valuable and where FOIA fails most. The problem is that the law fails tohold government agencies accountable for their compliance with FOIA.For FOIA to fulfill its promise, it must hold government agencies accountable. Theproposed Cornyn-Leahy OPEN Government Act of 2005 would impose consequences onagencies for tardiness and create a FOIA ombudsman to audit, review, and mediate FOIArequests. Although the effectiveness of the ombudsman is uncertain, the act’s consequencesfor tardiness would create real accountability for FOIA deadlines and thereby strengthenFOIA considerably.2 The Fiction of FOIA AccountabilityIn an idealized world, a requester would obtain a government record under FOIA in thefollowing fashion. He submits his request. The agency searches for relevant records and thenreviews the records to determine what to redact and what to disclose. Within 20 workingdays, the agency makes a determination about whether to comply with the request. Withina reasonable time thereafter, the agency delivers the documents to the requester.1If the requester is dissatisfied with the completeness or the timeliness of the response, hefiles an administrative appeal with the head of the agency. The agency must respond to theappeal within 20 working days.If the requester is dissatisfied with the administrative appeal, he files a lawsuit to compeldisclosure. If the court finds that the requester “substantially prevails,” then it “may assess1FOIA actually does not specify any timeframe, but “within a reasonable time” is the judicial interpre-tation.2against the United States reasonable attorney fees and other litigation costs reasonablyincurred.”3 The Problem: Legal basis and empirical evidenceThis is a b eautiful picture. Unfortunately, this is not how FOIA works in practice. First,agencies delay responding because they are not responsible for the deadlines under the OpenAmerica decision. Secondly, the difficulty of filing suit means that agencies rarely worryabout this possibility in deciding to withhold or redact records. Thus, if the records arepolitically sensitive or reveal government wrong-doing, government agencies are stronglydisinclined to disclose them in response to FOIA requests. I will address each problem inturn.3.1 DelayWe first witness this lack of accountability in agencies’ habitually late responses to FOIArequests. FOIA imposes a deadline of 20 working days, but an influential 1976 D.C. circuitdecision eliminated all respect for that deadline in Open American v. Watergate SpecialProsecution Task Force, 547 F.2d 605. Open America sought access to FBI files on the roleof the Acting FBI Director, L. Grey Peterson, in the Watergate affair. After the FBI missedthe statutory deadlines for the request and the subsequent appeal, Open America filed suitto compel disclosure, arguing that the plain meaning of the statute required that the FBIobserve the statutory time limits. In 1974, these limits gave the FBI 10 working days to3respond (with a 10-working-day extension under one of three “unusual circumstances”) and20 working days to make a determination on administrative appeal. Even with the (dubiouslyapplicable) “unusual circumstances” extension, the FBI had missed all the deadlines.Instead, the court found relief for the FBI under the “exceptional circumstances” provi-sion of 5 USC §552(a)(6)(C):If the Government can show exceptional circumstances exist and that the agencyis exercising due diligence in responding to the request, the court may retainjurisdiction and allow the agency additional time to complete its review of therecords.The court ruled that the unanticipatedly large FOIA backlogs constituted “exceptional cir-cumstances.” Consequently, so long as the agency was exercising “due diligence” in respond-ing to the request, the court could grant additional time to disclose the records. In this case,191 FBI employees were processing FOIA requests in the order they were received, and thisconstituted due diligence. Thus, habitual agency delay in responding to requests found legalvalidation in Open America; the court effectively nullified the 20-day statutory limit.We see this delay empirically. In 2001, the GAO analyzed the 1999 FOIA annual reportsof 25 agencies that processed 1.9 million requests.[10] These 25 agencies handled 97% of thefedoral governments’ FOIA requests; they are the 24 agencies identified in the Chief FinancialOfficers Act, plus the CIA. These annual reports give the number of requests handled andthe median processing time in working days, so we cannot identify the median processingtime across the entire government. Nevertheless, we do see that the agencies with medianprocessing times of 20 days or