We live in a nakedly transparent age. Celebrities live out loud, companies routinely have their business spilled all over the Web and anybody can find out an awful lot about you or me with a click of the mouse.
Not so in Washington, however, where the mechanism for releasing information has all but ground to a halt.
Four decades ago, President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (F.O.I.A.) into law, requiring federal agencies to respond to any request for documents within 20 days and provide them within a reasonable time afterward. The law held that information gathered on our behalf — paid for and owned by you and me, at least theoretically — should be ours for the asking.
But it hasn’t worked out that way. While the mandate for disclosure is still there, it is overwhelmed by a Rube Goldberg apparatus that clanks and wheezes, but rarely turns up the data.
Freedom of Information requests have been caught in the gears for decades, and journalists working on timely stories about lead in school lunch boxes, FEMA’s response to Hurricane Katrina and delays in the delivery of veterans’ benefits have all been stymied by agencies that flout the law through recalcitrance or ineptitude.
A recent survey by the National Security Archive, a private research group at George Washington University, found that five federal entities — the State Department, the C.I.A., the criminal division of the Justice Department, the Air Force and the F.B.I., all had some requests that were more than 15 years old.
It can get pretty silly: In 2002, the National Zoo in Washington denied a request for the medical records of Ryma the giraffe because, it said, the release would violate the animal’s privacy rights.
Almost everyone seems to realize that more sunlight is needed. A bill to bring the government into the same century as its citizens has picked up massive support across a broad spectrum, but has yet to reach the Senate floor for a vote because it is impaled on the obstinacy of a single senator. (More on him later.)
The attempt to improve the Freedom of Information Act passed the House with a large bipartisan majority (308-117) in March. In the Senate, the Openness Promotes Effectiveness in Our National Government Act of 2007, from Senators John Cornyn and Patrick Leahy, was reported out of the Judiciary Committee on April 12.
Both bills try to reduce the backlog of requests under the Freedom of Information Act by mandating that missing the 20-day statutory deadline would result in consequences for the stonewalling agency. The bills also call for an ombudsman to settle disputes and would establish a Freedom of Information hotline to track requests.
Perhaps most important, the bills would mandate that if an agency disputes a request and is sued, it can’t simply “find” the information the day before the case goes to trial without some liability for legal costs. The bills also define media to include bloggers, so that they will eligible for the same waiver of fees, a minor accommodation of modern information realities.
The bills are not intended to open the government kimono any further (this being a very security-conscious age), but simply to make agencies meet the requirements of long-standing mandates. More than 100 groups including the United States Chamber of Commerce, the National Association of Manufacturers, the American Conservative Union and the Heritage Foundation — hardly the kind of folks who take to the ramparts — have pledged support for measure.
(And lest you think I’m simply carrying water for my chosen profession, the news media account for only 6 percent of all Freedom of Information requests; most come from private concerns and individuals.)
But for the time being, the bill in the Senate is going nowhere, and it is only fitting that it ended up in a cul-de-sac in June by way of something called a “secret hold,” a process by which a sitting senator need only raise an anonymous objection to stymie a bill.
For a time, no one knew who the secret senator was, but in May, the Society of Professional Journalists polled the Senate and soon discovered that Senator Jon Kyl, Republican of Arizona, had put a hold on the bill, in part because of “grave concerns” raised by the Justice Department in a 13-page letter sent to Senator Leahy on March 26. (Senator Leahy’s staff has since met with the Department of Justice and amended the bill to reflect some of its concerns.)
Senator Kyl’s press secretary, Ryan Patmintra, said that the senator raised concerns while the bill was in committee and that Senator Leahy had assured him that any differences would be worked out at the staff level. But then Senator Leahy moved to have the measure approved as it was by unanimous consent, Mr. Patmintra said. The senator believes the bill as written could lead to increased litigation and cost to government.
“We are trying to make a good bill better,” Mr. Patmintra said. “Senator Kyl agrees that F.O.I.A. needs to be modernized, though the bill in its current form has a series of unintended consequences that need to be repaired.”
Although he said that discussions had begun, there has not been much sign of a dialogue, according to Senator Leahy’s spokeswoman, Tracy Schmaler. She sent along the following statement from Senator Leahy: “It is sadly ironic that a bipartisan bill promoting sunshine and openness in our government has been delayed.”
If Senator Kyl does not relent and allows expedited passage of the bill, it may or may not make it to a floor vote in the fall. Tom Curley, chief executive of The Associated Press, is part of a coalition of news media outfits called the Sunshine in Government Initiative that is advocating quick passage of the law.
“We are all quite concerned. To begin with, this seemed like a lay-up, something we could all agree on and that would pass quickly,” Mr. Curley said. “Senator Leahy and Senator Cornyn did their homework, worked hard to see that everyone was heard, and they thought they had consensus. Now you have one back-channel effort to thwart all this work.”
Paul J. Boyle, a senior vice president for the Newspaper Association of America, said the existing Freedom of Information process is crumbling under the weight of a widespread emphasis on secrecy, unreasonable delays and random denials.
“We feel that the mechanics of F.O.I.A. are broken,” said Mr. Boyle. “This bill is a straightforward effort to streamline the process and set real deadlines behind the statutes so that agencies have an incentive to comply and provides tools for the requestors who are running into problems.”
Don’t expect a huge uproar if the bill doesn’t make it. With an election coming, data secrecy isn’t the sexiest issue. But many of those “Holy cow” newspaper articles you read have their roots in the banal bureaucracy of government information.
Of course, these chronic, continuing issues with Freedom of Information requests are occurring on top of an administration that has been both remarkably tight-fisted with information and aggressive in going after those who release it. Sensible minds might disagree on how to tweak the act, but no one can argue that the current debate over secrecy doesn’t deserve to see the light of day.
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