Mixed Signals, Mixed Results: How President Bush's Executive Order on FOIA Failed to Deliver National Security Archive Update, March 16, 2008

Mixed Signals, Mixed Results: How President Bush's Executive Order on FOIA Failed to Deliver
Two Years Later, Freedom of Information Order Still Has Not Produced All That It Promised

Knight Open Government Survey shows lack of resources or enforcement inhibited order's effectiveness at 90 federal agencies; some customer service gains

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Thomas Blanton, Meredith Fuchs, Kristin Adair, Catherine Nielsen
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Washington, D.C., March 16, 2008 - President Bush's executive order for a "citizen-centered" and "results-oriented" Freedom of Information system did improve customer service at federal agencies, but has failed to make consistent progress on backlogs and has not significantly improved compliance with electronic FOIA requirements, according to the Knight Open Government Survey released today by the National Security Archive at George Washington University.

"Many of the same old scofflaw agencies are still shirking their responsibilities to the public," said Tom Blanton, director of the Archive. "I'm reminded of how many psychiatrists it takes to change a light bulb - only one, but the light bulb has to really want to change."

The order set up Chief FOIA Officers at each of 90 federal agencies and asked for FOIA improvement plans from each agency. The Archive's Survey, the seventh in a series of unprecedented government-wide audits of FOIA performance, analyzed all the agency improvement plans, sent FOIA requests to all 90 agencies (plus 18 major agency components), and queried agency FOIA Service Centers and public liaison offices to test responsiveness.

The Knight Survey found across-the-board improvements in customer service for FOIA requesters based on the establishment of FOIA service centers, public liaisons, and chief FOIA officers as readily identifiable contacts for requesters across agencies.

But the survey found uneven progress and outright shortfalls on the problem of backlogs, because the order lacked any enforcement mechanisms or funding, and left goal-setting up to the agencies themselves. Two years into implementation of the order, the number of pending FOIA requests government-wide remains in the range of 200,000, with large variations between agencies, according to the Survey's analysis of agency plans and reports.

President Bush's order also prompted only limited improvement in compliance with the 1996 E-FOIA amendments, which require federal agencies to post certain records and FOIA guidance online.

"The order was only a small step for open government," remarked Meredith Fuchs, general counsel of the National Security Archive. "There are certainly mixed messages when the President asks for results under the Freedom of Information Act, and at the same time refuses to support funding of technology or personnel, opposes improvements to the law, and exempts parts of the Executive Office of the President from the law." In FOIA litigation involving the White House Office of Administration, the Office of Administration in 2007 began to claim that, despite processing FOIAs in the past, filing FOIA reports for Congress, and writing a FOIA improvement plan, it is not subject to FOIA.

"Freedom of information laws exist to provide American citizens with the facts they need to run their governments and their lives. Information may seem more plentiful these days, but that doesn't mean it's less important. Strong democracies are held together by the force of their facts," said Eric Newton, vice president of the journalism program at the John S. and James L. Knight Foundation, funder of the Knight Open Government Survey.

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THE NATIONAL SECURITY ARCHIVE is an independent non-governmental research institute and library located at The George Washington University in Washington, D.C. The Archive collects and publishes declassified documents acquired through the Freedom of Information Act (FOIA). A tax-exempt public charity, the Archive receives no U.S. government funding; its budget is supported by publication royalties and donations from foundations and individuals.