Agencies use tricks to conceal information

President Barack Obama’s new standards of openness in the federal government have not trickled down to some of its agencies, where officials have used special statutes inserted into bills to skirt the Freedom of Information Act, open government advocates said Wednesday.

Efforts to strengthen the 42-year-old law “have been hampered by the increasing use of legislative exemptions that are often sneaked into legislation without debate or public scrutiny,” Senate Judiciary Committee Chairman Patrick Leahy said in remarks prepared for a hearing on the issue.

News organizations and media groups said new legislation was needed to limit the information agencies may keep secret and for how long.

“The secrecy reflex at some agencies remains firmly in place,” and FOIA still contains relatively weak penalties for those that don’t meet their disclosure obligations, Tom Curley, president and CEO of The Associated Press, said in prepared testimony to the committee.

“We appreciate the change in policy direction, but the change hasn’t yet reached the street,” said Curley, testifying on behalf of the Sunshine in Government Initiative, a coalition of media groups.

The hearing is the first status report on a new Office of Government Information Services, created by Congress earlier this year at the National Archives and Records Administration to review the government’s compliance with open government laws and to mediate disputes with the public.

The new Archives office was established by a bill written by Leahy, D-Vt., and Sen. John Cornyn, R-Texas, that enacted several changes in FOIA, including requirements to better track information requests and reduce processing delays.

Those changes kicked in just as President George W. Bush was leaving office after eight years of secrecy about how he was fighting terrorism in the wake of the Sept. 11, 2001, terrorist attacks. Bush administration officials repeatedly testified before Congress that revealing techniques of finding potential terrorists abroad and on U.S. soil would compromise national security.

Obama’s first public act in office was to order more government transparency. He revoked Bush’s November 2001 executive order allowing past presidents to exert executive privilege to keep some of their White House papers private. Obama also instructed federal agencies to be more responsive to FOIA requests.

Curley said agencies are still trying to hide information sought by reporters, which isn’t much different from past years. The Sunshine in Government Initiative estimates that more than 240 statutes on are on the books that agencies may use for denying FOIA requests. Such statutory exemptions are typically inserted into massive legislation, such as omnibus spending bills, without any debate and are not subject to court challenge, he said.

The Federal Aviation Administration, for example, tried to hide its database of bird strikes on airplanes from AP reporters probing the Hudson River landing of a plane crippled by a flock of geese, Curley said. The agency “stalled the reporters while it looked for a way to put all the information beyond the reach of FOIA by imposing a special regulation.”

Among the FAA’s concerns, he said, was that the reporting of bird strikes was unreliable and that any comparison of one airport with another would be unfair. Officials cited an exemption that allows the FAA to withhold safety and security information voluntarily submitted to aviation regulators.

The information was “of deep and obvious interest to air travelers,” Curley told the committee. Public pressure led to the eventual release of the information.

Leahy and Cornyn have introduced legislation that would require any such exemptions included in legislation to be clearly stated, rather than buried. The legislation has passed the Senate twice but has not yet been considered by the House.


The Leahy and Cornyn bill is S. 612.


On the Net:

Bill text:

Senate Judiciary Committee hearing Webcast: