FOIA Reform Scams

I have an issue with the way news media present such rosy prospects for FOIA each year during Sunshine Week.  Year after year, optimism is based, not on new ideas to improve FOIA being enacted into law, but merely on a new bill with a short shelf life being introduced or reported out of committee.  

The ballyhoo over the Issa-Cummings FOIA implementation bill taken up by the U.S. House Oversight and Government Reform Committee just in time for this past Sunshine Week comes to mind.  Publicizing that is like awarding a soldier the Congressional Medal of Honor for telling what he might do in combat someday.

Just as bad or worse, news organizations downplay or ignore efforts to inhibit open government.  A recent example would be proposals put forward by the Michigan State Court Administrative Office.

In RICO cases, the cast of characters consists of three types: (1) racketeers, often con artists, (2) dupes exploited as false fronts and (3) victims.  Sunshine Week works in a similar fashion.  Legislators, press and public.

Let’s hope that annual celebrations by the press of wobbly legislative hints of reform haven’t become a meaningless ritual.  If next year’s Sunshine Week is going to be any different, now is the time to start planning for it.

These two Congressmen walk into a bar...

 ...and six hours later, stumble out with a bill scribbled on 143 cocktail napkins.

U.S. House Oversight Committee Chairman Darrell Issa (R., Calif.) and Rep. Elijah Cummings (D., Md.), ranking member, collaborated on a bill providing for one federal portal for all 700,000 or so FOIA requests that might be expected annually in the near term.  Good luck!  If enacted, Washington will manage that about as well as Detroit Water and Sewer handles combined sewer overflows.

Potato Peeling Machine

And what are the odds that the bill authorizing the plan will meet and marry a bill to pay for it?  Ah, there's another rub.

The bill just out of committee tinkers with the government's burden to justify withholding information.

An admirable part of the proposal would amend the provision for public access to information in FOIA by striking ‘‘for public inspection and copying" and inserting "in an electronic, publicly accessible format."  Of course, that's been done by the agencies for years, albeit inadequately.  Nice to see that the Act's language may finally be catching up to the reality, though. 


Material requested three times or more would be posted online for easier public access.

The same would apply to records deemed "likely" to contribute significantly to public understanding of government operations.  Likely?  Are we talking about Vegas odds here?  Can you imagine a court-imposed standard of proof ?  

Accessible records will be kept of each agency's proactive archiving online, and the authority of the FOIA Ombudsman will be beefed up.

The Office of Government Information Services (OGIS) would be created to review compliance, report to Congress, hold public meetings at least once a year, blah, blah.

Each agency would have a Chief FOIA Officer.

There are lengthy provisions concerning appeal, mediation and dispute resolution.  Is this bureaucratic Heaven or what?

Numerous duties are heaped on OGIS, agencies' Inspectors General, Chief FOIA Officers and a Chief FOIA Officer Council.

In conclusion, I have to wonder if this bill is actually intended for passage or is simply window dressing thought by its authors to be expected during Sunshine Week.  If really intended to become law, would this bill help in the long run or hinder the public in acquiring government records?

I predict the bill, if it passes both House and Senate and gets funded, will require a cast of thousands, cost billions and accomplish virtually nothing.

If we really want FOIA compliance, let's make unjustifiable non-compliance a federal felony.  Information would flow in a torrent.

Seriously, adding more and more government machinery is not the solution.  Congressional gimmickry is no substitute for true presidential leadership (not mere lip service).  If that means the president has to crack a few bureaucrats' heads, so be it.

[Update]

http://www.fiercegovernmentit.com/story/doj-metatagging-plan-will-make-all-federal-foia-documents-searchable-access/2013-03-28