The House Government Reform Committee's Government Management, Finance and Accountability Subcommittee held a hearing to assess how the 39-year-old FOIA is functioning. It was not a pretty picture.

Advocates for open government described the need to expand both the incentives for federal agencies to respond more quickly to FOIA requests and to invoke penalties for delay and noncompliance. Witness after witness, both conservative and progressive, including working journalists and the Government Accountability Office (GAO), described problems with public efforts to obtain documents from federal agencies through FOIA.

GAO Director of Information Management Issues, Linda Koontz, provided new data. Between 2002 and 2004 the number of FOIA requests by federal agencies jumped 71 percent, she reported, with about 4 million requests in 2004. While agencies have been processing more requests, the backlog has also increased, rising 14 percent since 2002.

Roughly half of FOIA requests go to one agency, the Department of Veterans Affairs (VA) because the agency treats requests for medical records as a FOIA request. (In fact, the VA and Social Security Administration accounted for 82 percent of all FOIA requests in 2004.) But the VA is not driving the increase -- in fact, the number to the VA declined between 2003 and 2004. Overall, FOIA requests increased 25 percent from 2003 to 2004; when dropping the VA from the equation, the increase jumps to 61 percent.

According to GAO, three federal agencies -- State, the Central Intelligence Agency (CIA), and the National Science Foundation -- made full grants of FOIA requests in less than 20 percent of the cases they handled. Less than 40 percent of the FOIA requests to the Department of Homeland Security, for example, were granted in full. GAO also noted that backlogs of pending FOIA requests increased between 2002 and 2004 for 13 of the 25 agencies they surveyed.

One witness representing the Department of Justice asserted small budgets and too stringent requirements on disclosing information posed the biggest problems to FOIA's implementation.

The same day, Waxman announced he would reintroduce legislation to reverse many of the new secrecy regimes put in place in recent years. The Waxman bill, the Restore Open Government Act, would eliminate the various ill-defined "pseudo-classification designations," such as "Sensitive But Unclassified." Such categories apply to information that government agencies wish to withhold even though it is public and cannot be classified. The proliferation of such vague, ill-defined categories of information begs the question whether new restrictions are needed when the existing classification system is riddled with well-documented overclassification.

The bill would also fund the Public Interest Declassification Board, which has five of seven members already appointed but has never met due to lack of funds. In addition, it would provide for the timely release of presidential records and nullify the "Ashcroft memo," which shifted agencies from disclosing documents to withholding them whenever possible.

See expert testimony from the May 11 hearing.