June 11, 2003

June 11, 2003 | Commentary on

Bureaucracy, Not Bush, Is Suffocating the FOIA

Critics regularly bash President Bush for excessive secrecy in government. But it's federal bureaucrats who can't be bothered with public accountability who are slowly but surely strangling the federal Freedom of Information Act.

 

Typical of the critics is Charles Davis of the University of Missouri's Freedom of Information Center, who argued in a recent column that "the federal government of 2003 is the most secretive modern administration since King George's back in the era of tar and feathers." Similar rhetoric is a regular feature of "The FOI Advocate," the otherwise valuable e-newsletter Davis edits for the National Freedom of Information Coalition.

 

True, the Bush administration has damaged the FOIA's effectiveness, even as the president has performed magnificently in so many other respects in the war on terrorism. But Bush is far from matching such constitutional outrages as Republican Abraham Lincoln's jailing of "copperheads" who criticized how he conducted the Civil War, or Democrat Woodrow Wilson's use of domestic agents to spy on journalists like the Baltimore Sun's H.L. Mencken during World War I.

 

No, Bush is not the major problem here. Critics like Davis should be far more concerned about a threat to the FOIA found every day in every federal department and agency -- the very public servants whose duty is to enforce the law but who instead go out of their way to ignore it or subvert it. Such career civil servants are threatened by the FOIA because the 37-year-old law gives every citizen a tool to hold elected government officials and civil servants feet to the fire of public accountability. Consider these facts:

 

Virtually all FOIAs submitted to federal departments and agencies are handled by career civil servants and are never seen by political appointees serving the president. Some civil servants are conscientious about following the FOIA. I know this because I dealt with several such folks as a practicing journalist.

 

But it's a rare reporter these days who hasn't far more often dealt with bureaucrats who use every possible stalling tactic -- such as forcing requestors to resort to expensive legal appeals for even the most mundane information, charging exorbitant copying fees or simply refusing to provide any document or portion of it that casts their agency or program in an even remotely negative light.

 

No wonder so many journalists ignore the FOIA: They fear that it will just waste time, legal resources and reporting energy. Thus does the bureaucratic blob defeat the basic purpose of the FOIA.

 

Worse, the blob is almost impervious to efforts to change its culture. The National Security Archive recently surveyed 35 federal agencies that handle 97 percent of all FOIA requests. The NSA sought to measure compliance with a controversial October 2001 memo from Attorney General John Ashcroft containing FOIA administrative "guidance" to departments and agencies. The archive's survey results illustrate the maxim that what politicians order isn't always what the bureaucrats do.

 

"Some agencies concluded the Ashcroft memo represented a 'drastic' and 'fundamental' change; others saw no change or said 'Yeah. OK' when asked about impact," the Archive said. Most agencies -- 17 out of 33 -- just forwarded copies of the memo to FOIA officers without changing regulations, guidance or training materials; and one summarized the prevailing feeling as 'more thunder than lightning.'" Three agencies told the Archive they made "no changes in regulations, guidance or training materials."

 

The survey clearly shows that our FOIA system -- managed and administered almost entirely by career civil servants -- desperately needs major reform.

 

"The process of filing successful requests at 35 agencies revealed a federal FOIA system in extreme disarray," the Archive said. "Agency contact information on the Web was often inaccurate; response times largely failed to meet the statutory standard; only a few agencies performed thorough searches including e-mail and meeting notes; and the lack of central accountability at the agencies resulted in lost requests and inability to track progress," So it was before the Ashcroft memo -- and after.

 

Instead of taking wildly inaccurate shots at a sitting president, critics need to recognize that it's time to junk the present FOIA and replace it with a new law that can truly protect the public's right to know what our government is doing and how it's doing it.

 

Mark Tapscott, a former newspaper journalist, is Director of Media Services and the Guardabassi Fellow for The Heritage Foundation.

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