Computer-based information technology emerged as an indispensable
tool for the general public in the 1990s. Personal computers,
e-mail, databases, and the Internet became commonplace. The
Clinton Administration and Congress were quick to see the trend
and recognize the critical role such technology could play in
improving government interaction with the public. As President
Bill Clinton stated in 1993: "the federal government spends
billions of dollars collecting and processing information .
. . [but] many potential users do not know that it exists or
do not know how to access it. We are committed to using new
computer and networking technology to make this information
more accessible to the taxpayers who paid for it." (Note
1)
Against this backdrop, Congress examined the plodding, backlogged,
inefficient FOIA system at federal agencies and found it mired
in the past. Determined to bring the agency FOIA programs into
the technological present, Congress passed the Electronic Freedom
of Information Act Amendments of 1996 (E-FOIA). E-FOIA sought,
among other things, "to encourage on-line access to Government
information available under the FOIA. . . . [Such access would]
result in fewer FOIA requests, thus enabling FOIA resources
to be used more efficiently in responding to complex requests."
(Note 2)
As we mark the tenth anniversary of the E-FOIA Amendments,
however, the promise of a revolution in access to information
remains unfulfilled. The transformation Congress envisioned
was thwarted by noncompliance at many federal agencies and only
halfhearted compliance at most others.
In passing the E-FOIA Amendments, Congress mandated a new solution
to the backlog and resource problems plaguing FOIA administration:
make more commonly requested records available to the public
as a matter of course, a measure that would not only dramatically
underscore the principle of open government, but would also
reduce the number of FOIA requests clogging the system. This
concept was revolutionary because it had the potential to shift
the FOIA from the principal means for the public to access government
information into an exception to the rule of access to open
records. (Note 3)
The provision of the Amendments that is potentially the most
powerful requires agencies to make available electronically
those records that the agency determines "have become or
are likely to become the subject of subsequent requests for
substantially the same records" (Note 4)
- now commonly referred to as "frequently requested records."
(Note 5) This approach offers benefits for
agencies and requesters alike, as it removes much of the administrative
burden for matters of strong public interest. It is far more
consistent with the original purpose of FOIA, as expressed by
President Johnson when he signed the bill into law: "[A]
democracy works best when the people have all the information
that the security of the nation will permit." (Note
6)
The Amendments also mandate that agencies provide certain records
and guidance on FOIA to make it easier for members of the public
to file clear, targeted FOIA requests. Congress intended for
the public to use indexes and guides provided by the agencies
to determine what types of records are available at each agency
and whether or not they can be obtained under FOIA. These provisions
of the amendments were intended to provide FOIA requesters with
the knowledge to make the FOIA an effective and powerful tool.
This audit examines federal agency compliance with E-FOIA's
mandate that agencies harness technology to make the ideal of
an open government a reality. We conducted a review of 149 agency
and component Web pages during January and February 2007, and
evaluated each site to assess compliance with E-FOIA as well
as each agency's progress in using technology and the Internet
to further the goals of the Act. The reviews considered compliance
with E-FOIA and guidance from the Department of Justice (DOJ)
and the Office of Management and Budget (OMB) concerning implementation
of the law. (Note 7) We gathered additional
evidence by filing FOIA requests with some agencies and components
regarding their E-FOIA policies, examining agencies' FOIA annual
reports, and reviewing all of the FOIA improvement plans filed
by agencies pursuant to Executive Order 13,392 of December 14,
2005. Our data indicate a striking level of noncompliance with
both the letter and the spirit of the law.
To address this problem, this audit offers recommendations
for government-wide policy changes and strategies for implementation
on the agency level in the areas of: (1) electronic reading
rooms; (2) FOIA reference materials and guidance; and (3) FOIA
Web site structure and organization. Our goal is to help information
access professionals focus on ways to make FOIA work better
for their agencies and for the public.
Next
Section - Electronic Reading Rooms ->
Notes
1. William J. Clinton and Albert Gore, Jr.,
Technology for America's Strength: A New Direction to Build
Economic Strength, Government Printing Office (Washington,
DC: February 1993).
2. House Committee on Government Reform and
Oversight, Electronic Freedom of Information Amendments
of 1996, 104th Cong., 2nd sess., 1996, H.R. Rep. 104-795,
11.
3. According to one commentator, the 1996 amendments
altered the FOIA system such that "[a]n agency is no longer
permitted to passively await requests and respond to each request
one-by-one-a process that can delay access to records that have
already been released for months or years." Michael Tankersley,
"Introducing Old Duties to New Technologies," Federal
Lawyer 45 (Sept. 1998): 26-27.
4. Freedom of Information Act, 5 U.S.C.
§ 552(a)(2)(D).
5. See Department of Justice, Office of Information
and Privacy, Agencies Continue E-FOIA Implementation, FOIA
Post, 2001.
6. White House Press Release, Statement
by the President upon Signing S. 1160, July 4, 1966, from
Lyndon B. Johnson Library, Records of White House Offices, 1963-1969,
White House Press Office Files, Box 49, "6/30/66-7/15/66
PR 210a - PR 2134a."
7. Department of Justice (DOJ) has a statutory
role under the FOIA to provide agencies with guidance on reporting
standards and oversee annual FOIA reporting. Following enactment
of the 1996 amendments, DOJ's Office of Information and Privacy
(OIP) issued a series of guidance documents to assist agencies
that were developing FOIA Web pages and to ensure uniform access
to FOIA information on the Internet, which are referenced throughout
this report.
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Section - Electronic Reading Rooms ->