Number of times federal agencies invoked an exemption to the Freedom of Information Act to withhold information from the public in 2012, according to a 2013 report. That was a 41 percent increase from the previous year.

Republic Washington Bureau Tue Mar 11, 2014 11:04 PM

WASHINGTON — U.S. government agencies are coming up with more sophisticated ways to deny, delay and derail requests for information from journalists and the public, a University of Arizona professor told a Senate panel Tuesday.

The government is using the Freedom of Information Act as “a tool of secrecy, not openness,” said David Cuillier, an associate professor and director of the University of Arizona School of Journalism. Cuillier is also president of the Society of Professional Journalists.

“I don’t think I am exaggerating when I say we are approaching a crisis when it comes to access to information,” Cuillier testified at the hearing of the Senate Judiciary Committee.

The hearing was called by committee Chairman Patrick Leahy, D-Vt., who said he is concerned about what he characterized as a growing trend of federal agencies citing exemptions to the Freedom of Information Act, or FOIA, to “withhold large swaths of government information.”

“It becomes too much of a temptation — if you screw up in government, just mark it top secret,” Leahy said.

A 2013 report by openthegovernment.org found federal agencies invoked “exemption 5” to the Freedom of Information Act to withhold information from the public 79,000 times in 2012.

That was a 41 percent increase from the previous year.

The exemption covers communications within and between agencies that are protected by legal privileges.

Leahy also cited a new study by the Center for Effective Government, which graded the responsiveness of the 15 federal agencies that process the most FOIA requests. The report found that almost half of those agencies did not earn a passing grade.

International ratings of FOIA-like laws place the United States at 44th in access to public records, behind Uganda, Mexico, Kyrgyzstan and Russia, Cuillier said.

“This downward trend directly hurts the public,” Cuillier said. “When it works well, FOIA saves lives and improves society.”

Cuillier cited news stories based on information obtained from FOIA requests that informed the public about the dangers of crime aboard cruise ships, how drug companies influence the government’s decisions about what should appear on warning labels, and security concerns at labs run by the Centers for Disease Control and Prevention.

A study by researchers at Penn State University found that government denials of the public’s requests for information increased during the first three years of the Obama administration compared with the last three years of the George W. Bush administration.

“The evidence is clear: FOIA is broken,” Cuillier said.

A Justice Department official testified that the Obama administration has been able to increase the number of FOIA requests it processes despite a record number of requests for information.

“Agencies have persevered through a difficult year of limited resources and tough fiscal times to meet the ever-increasing demands,” said Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy.

She said federal agencies received a record 704,394 requests for information in fiscal 2013, an increase from the previous high of more than 651,000 requests in fiscal 2012.

The government processed 678,391 of the 704,394 requests last year, Pustay said.

Federal agencies have tried to reduce the need for FOIA requests by posting more information online for the public to access, Pustay said. But she said that has not reduced the number of requests.

“Of course, it is likely that the increase would be even higher in the absence of the many proactive disclosures that were made,” Pustay testified. “It is also likely that our increased focus on the important role that transparency plays in our democracy has itself made more members of the public interested in seeking access to records.”

She said the administration is working to reduce backlogs of pending requests.

In fiscal 2013, 55 agencies reduced their backlog or had no backlog of FOIA requests, while 40 agencies had an increase in backlog, Pustay said.

She said her office has directed any agency with a backlog of more than 1,000 requests to come up with a plan for reducing that backlog this year.

But Cuillier said that the bigger problem is the increasing number of requests that are denied.

He proposed four major ways to strengthen the law:

Revise the act to clearly state that government records must be disclosed unless there is “a specific, foreseeable, identifiable harm.”

Strengthen the Office of Government Services to ensure officials can issue recommendations and speak their minds without prior approval from a federal agency.

Streamline the FOIA process by investing in a single online portal for receiving and tracking requests.

Limit exemptions in the law that allow the government to deny requests.