United States Senate
COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275
February 28, 2002
The Honorable David Walker
U.S. General Accounting Office
441 G Street, NW
Washington, DC 20548
Dear Comptroller General:
American society, federal agencies and the Freedom of Information Act (FOIA) continue to cross the threshold from the era of paper records to the era of the Internet. In performing its oversight functions, Congress will need a clear picture of the effects of these administrative changes and to evaluate the implementation and workability of amendments to FOIA's charter, such as the Electronic Freedom of Information Act (EFOIA) Amendments of 1996. Congress will continue to rely heavily on GAO's work in making these assessments. The GAO conducted a detailed study of agency EFOIA implementation activities in the last Congress and issued a report in March, 2001, with recommendations, including on how agencies could address reporting inconsistencies and data quality problems in annual FOIA reports. Please assess how well agencies have implemented and responded to GAO's recommendations for the FY02 reporting period.
Shortly after the September 11, 2001 terrorist attacks, postal delivery to federal agencies was and continues to be adversely affected by efforts to detect and prevent anthrax threats through the mails. While the Electronic Freedom of Information Act Amendments of 1996 did not require federal agencies to accept FOIA requests for records electronically, the capability to do so would have helped ensure that agencies were able to fulfill this important statutory mandate even during this period of delayed mail delivery. In GAO's March, 2001, report on EFOIA implementation, you noted that only thirteen agencies allowed FOIA requests to be submitted electronically, but anticipated this number would increase. Please ascertain which, if any, federal agencies made accommodations after the September 11 attacks and the subsequent anthrax threats to accept FOIA requests electronically and, if so, please evaluate how well this procedure worked.
In addition, as part of your review, please assess the impact of the Attorney General's new statement of Administration policy, issued on Oct. 12, 2002, on implementation of the FOIA that superseded former Attorney General Reno's policy, in effect since 1993. The prior policy favored openness in government operations and encouraged a presumption of disclosure of agency records in response to FOIA requests, unless the agency reasonably foresaw that disclosure would be harmful to an interest protected by a specific exemption.
By contrast, the new FOIA policy cautions federal agencies "to disclose information protected under the FOIA ... only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information." Moreover, the new FOIA policy encourages federal agencies "to withhold records, in whole or in part, ... unless [the decisions] lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." In short, the new policy appears to favor withholding agency records not only when an exemption clearly applies and disclosure would harm a protected interest, but also when there is doubt about its application and no foreseeable harm from disclosure.
I request that the General Accounting Office assess the impact of the new FOIA policy on (1) agency responses to FOIA requests, (2) agency backlogs of FOIA requests, (3) litigation involving federal agencies for withholding records, and (4) fee waivers for media requests, for the FY02 reporting period following the effective date of the policy.
As part of your examination of the impact of the new policy on agency responses to FOIA requests, please determine whether the withholding of records, in whole or in part, has been affected by the new FOIA policy, including the percentage of requests being substantively answered or denied; and for those records withheld, the basis for the withholding. I am interested in both statistical information as well as anecdotal information that may provide early indications of the impact of the new policy. Please provide an analysis of how guidance from the Department of Justice on how federal agencies should implement the new policy has changed and whether there has been any increase in the withholding of records and a concomitant increase in reliance on the courts to resolve FOIA disputes.
With respect to fee waivers for media requests, I am concerned that the Attorney General's new, more restrictive policy on responding to FOIA requests is also affecting the handling of fees for processing requests from representatives of the news media, educational or noncommercial scientific institutions. Please determine whether (1) agencies and, in particular, the Department of Justice has changed the standards or criteria by which FOIA requesters are considered representatives of the news media, educational or noncommercial scientific institutions; (2) individuals previously considered by agencies to be representatives of the news media, educational or noncommercial scientific institutions have been denied this status and the associated fee waivers during the past two years; (3) agency denials of fee waivers have increased; and (4) agency denials of fee waivers, including for requesters claiming to be representatives of the news media, educational or noncommercial scientific institutions, has enabled agencies and, in particular, the Department of Justice, to withhold records, such as weekly legislative activity report provided by the Office of Legislative Affairs to the Office of the Attorney General.
If you have any questions about this request, please Beryl A. Howell of my staff at (202) 224-7703. I appreciate your prompt attention to this request.
Senate Judiciary Committee