Implementation of FOIA falls short

The cover story in the Summer 2009 issue of Administrative & Regulatory Law News by the American Bar Association focuses on the poor state of FOIA. Author Daniel Metcalfe details how the 2007 FOIA amendments and Obama's FOIA policy, however promising they might have seemed, are falling short when it comes to implementation. Individual agencies have not changed their FOIA procedures to include the 2007 changes. For example, the Justice Department's FOIA Reference Guide hasn't been updated since May 2006. It's been particularly confusing for requesters who want records that are held by government contractors. Because of outdated regulations, the requesters don't know whether to send the request to the government agency or directly to the contractor. Metcalfe believes the Holder FOIA Memorandum could have been stronger if it hadn't been put together so quickly. The memorandum does not mention the importance of all agencies updating their FOIA regulations or the long backlogs of pending FOIA requests. Also, Metcalfe writes, "the Holder FOIA Memorandum by its terms applies itself to pending litigation only if a half-dozen lawyerly hedges are first satisfied."

The past eighteen months have been an exceptionally promising time for the Freedom of Information Act and for those who look to it to shine a bright light on the world. First Congress amended the Act with a package of amendments designed entirely to aid FOIA requesters, improve agency FOIA performance, and foster greater disclosure. Then a president who has declared that he wants to run “the most open administration in history” was elected to replace a president whose administration seemingly “never met a secret it didn’t like.” See, e.g., The Nature of Government Secrecy, 26 Gov’t Info. Quarterly 305, 307 (2009).

But as often is said of expected improvements in such areas of administrative law, “the devil’s in the details.” And when it comes to the FOIA, those devilish details are most often found in the quality of the implementation of new provisions and policies, on a governmentwide basis, and the timeliness, comprehensiveness, and effectiveness with which that is achieved. That is where the brightness of promised sunshine can readily fade if a new presidential administration is not pragmatic and careful. In this case, the badly incomplete implementation of the FOIA amendments made by Congress in 2007 foreshadowed no less.

More here.