Congressional funding for FOIA would backfire

Are agencies complying with
the Electronic Freedom of Information Act Amendments of 1996? The critics don’t think
so, and they want Congress to turn up the heat—even if some recommendations are
misguided.


Regular readers of GCN already know about a recent OMB Watch report, which found agency
compliance to be overwhelmingly inadequate. Only a few agencies have embraced E-FOIA and
the opportunity to make information publicly available on the Web.


OMB Watch is a public-interest group that keeps an eye on the Office of Management and
Budget, advocating broad public participation in government decision-making and a more
open and accountable federal government.


Over the last 15 years or so, this group has, in my opinion, been one of the few
public-interest organizations to pay consistent attention to federal information policies.
OMB Watch has always been an aggressive and effective advocate for public access. In the
1980s, the organization actively addressed the need to update federal laws and policies to
reflect changing information technology.


OMB Watch also puts its money where its mouth is. For years, it has run its own
Right-to-Know Network, collecting federal data and making it available to all. Surf to http://www.ombwatch.org and see for yourself how your
agency comes out.


Lately, OMB Watch has focused its attention on agency implementation of policies via
the Web. Last year, it issued a report about compliance with the Privacy Act of 1974 for
agency Internet sites. That report was one of the few independent efforts to monitor
Privacy Act activities.


E-FOIA report is also worthwhile reading. Although there are many groups with some
interest in the FOIA, oversight of FOIA implementation and legislation has typically been
inconsistent and incomplete. To be sure, the Public Citizen Litigation Group has brought
dozens of FOIA lawsuits over the years. David Sobel of the Electronic Privacy Information
Center is another aggressive FOIA litigator. The Reporters Committee for Freedom of the
Press is also a constant FOIA presence.


But there is no umbrella organization representing the federal FOIA user community. As
a result, independent FOIA oversight has always been haphazard, and weakening amendments
sometimes pass without much notice or opposition from anyone.


In contrast, many states have organized groups that work to protect and expand access
laws. The most impressive of these may be the Freedom of Information Foundation of Texas,
which has full-time and volunteer staff and which provides high-quality assistance. The
National Freedom of Information Coalition coordinates the state groups. Nothing comparable
exists at the federal level. That is why the OMB Watch report is welcome.


Having said all these nice things about OMB Watch, I am still going to take issue with
one of its recommendations. The


E-FOIA report urged Congress to allocate specific levels of funding for ongoing


E-FOIA implementation. That is a misplaced recommendation. Of course, more funding
would be welcome. But it is unrealistic to expect Congress to appropriate money for
relatively small activities such as FOIA.


It is also dangerous. Anyone who has read an appropriations bill knows that most
funding allocations are for broad categories of expenses, such as salaries. It is not
congressional practice to appropriate money for the enforcement of specific laws.


Should there really be line items for FOIA, the Privacy Act, the Paperwork Reduction
Act and similar laws? Neither Congress nor agencies would welcome that type of
micromanagement.


Many laws impose general requirements on agencies. The agencies themselves have to
allocate funds for these responsibilities. FOIA must compete with other activities for
funds.


A specific line item for FOIA could actually work against the law. Suppose that an
agency received a specific line item for FOIA. Once the funding ran out, the agency could
then shut down its operations for the rest of the year. Even worse, if Congress eliminated
the line item entirely in a subsequent budget, the agency might claim that it was not
given any funds to comply with FOIA. If that argument succeeded in court—and it
might—it would be the death knell for FOIA.


Congress can pressure agencies to do better through oversight and hearings. Access
advocates can focus more attention on FOIA, the way OMB Watch just did. But we can’t
reform FOIA through appropriations law. It would only backfire.  


Robert Gellman, former chief counsel to the House Government Operations
Subcommittee on Information, Justice, Transportation and Agriculture, is a Washington
privacy and information policy consultant. His e-mail address is rgellman@cais.com.

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