New Year Brings FoIA Changes, but Will They Help Journalists?
Weinberg, Steve, Investigative Reporters and Editors, Inc. The IRE Journal
It is almost unheard
of for a freedom of information bureaucrat to be demoted, penalized financially, suspended or fired for over-withholding.
The federal Freedom of Information Act has been around for 30years. It is so much a part of the reporting atmosphere that when journalists use it to request information, both their successes and their frustrations are taken for granted.
The Freedom of Information Act should not be taken for granted. The majority of journalists never use it, which is an indictment of their training and/or their attitude. Of those who use it, they too frequently let recalcitrant executive branch agencies and adverse judicial branch decisions prevail.
With the arrival of 1997, all manner of journalists-successful users, frustrated users and nonusers have fresh reason to think about the federal Freedom of Information Act. That is because significant new amendments, known as the Electronic Freedom of Information Act (House Bill 3802; Public Law 104-231), take force this year.
Many journalists, legislators and public-interest lawyers are optimistic about the new law making a big difference for the better. Although a heavy user in the past who sometimes received satisfaction, I am pessimistic. Before explaining why, though, a summary of the changes is in order.
Summary of changes
The Freedom of Information Act, thanks to the amendments, finally redefines records to include those maintained by a federal agency in computerized/electronic formats. In fact, records created as of Nov. 1, 1996, must be available online as well as in hard copy if the agency has online capabilities. If an agency can demonstrate it lacks online capabilities, it must use an alternate electronic format, such as a CD-ROM or a computer diskette.
When ajournalist (or any other requester) wants information in electronic format, an agency must make reasonable efforts to produce that format, unless the agency can show significant interference with normal operations.
The amendments contain other provisions that should be friendly to journalists. For example, an agency must now release information given to previous requesters when receiving a current request. An index of previously released material must be created by every agency subject to the law, then made available online by the end of 1999.
In limited circumstances, journalists might see expedited handling of their requests. The amendments contain a "compelling need" provision, so that information requests will be processed more quickly than usual if a journalist demonstrates an "urgency to inform the public concerning actual or alleged federal government activity."
Agencies will be allowed to take 20 working days to grant or deny a request because of the amendments. The previous limit was 10 working days, but journalists have lost little. That is because few agencies observed the 10-day limit anyway on massive requests, invoking their right to an extension due to "unusual circumstances." The amendments establish a mechanism for negotiation between agency personnel and requesters about response times. Agencies, however, are not supposed to insist on extensions because of processing backlogs. Part of the negotiation process allows agencies to scrap the first-come, first-served protocol based on the complexity of a request.
Journalists considering making a request at a given agency should eventually have a better fix on agency performance under the amendments. That is because agency annual reports to Congress should contain lots more detail about backlogs and processing times.
Sounds good, problems persist
Most of the changes sound good for journalists. So why am I pessimistic? Because legislation often fails to change entrenched attitudes. Federal employees in executive branch agency freedom of information offices too often have the wrong attitude. They believe they can get into trouble if they release sensitive information to pesky reporters. …