Delays, fees thwart Freedom of Information Act, critics say.

Twenty-one years after the Freedom of Information Act (FOIA) was signed into law in 1966, journalist Seth Rosenfeld filed a FOIA request to get FBI records on the University of California. Today, after filing several lawsuits seeking release of the documents, Rosenfeld still awaits some of them, making his the longest currently pending FOIA request.

Despite Congress's intent to make federal government records available to nearly anyone who requests them, FOIA is falling short of its promise, critics contend. Especially in recent years, they say, government agencies are using excessive fees, delays, and classification of previously unclassified information to avoid releasing requested documents.

"This bulwark of open government is under assault," said Sen. Patrick Leahy (D-Vt.) at a March hearing on the need to reform FOIA. "Liberals and conservatives both recognize a dangerous trend toward overclassification of information, at enormous cost to the taxpayers and risk to our citizens."

With Sen. John Cornyn (R-Tex.), Leahy introduced two bills--the Open Government Act and the Faster FOIA Act--in February and March, respectively. The former would enforce timely responses to FOIA requests, provide a tracking system for requests and their status, and ensure attorney fees for plaintiffs who file successful lawsuits after their FOIA requests are denied. The Faster FOIA Act, which the Senate Judiciary Committee quickly approved, would establish a commission to recommend ways to speed up government compliance with FOIA requests.

Leahy also cosponsored the Restoration of Freedom of Information Act. This legislation would limit exemptions that were expanded by the Homeland Security Act of 2002 for releasing information under FOIA.

FOIA exempts from release information classified as secret by an executive order; agency personnel rules and practices; information specifically exempted by a statute; trade secrets and privileged or confidential commerical and financial information; inter and intra-agency documents not available except to another agency in litigation; personnel and medical files; law enforcement information when it might interfere with law enforcement and judicial proceedings, endanger a person, or invade personal privacy; reports concerning the regulation of financial institutions; and oil well data.

West Virginia journalist Ken Ward Jr. files regular FOIA requests in his reporting work. Like many in his profession, he believes that government delays in fulfilling these requests are a growing problem. He gave as an example his attempt to obtain documents related to a January 2003 incident in which three coal miners were killed in a mine shaft explosion.

"It took the Department of Labor more than a year to release simple records showing that the mine shaft project had never been inspected by the federal government," Ward said. "Normally, such records--inspection forms, or in this case, the lack thereof--are released in a day or two."

Mark Hughes, a Denver lawyer who uses FOIA in litigation on behalf of environmental groups, said such delays are widespread and symptomatic of a larger problem.

"Obviously, the government needs to keep some secrets, and FOIA has always allowed that. But the range of government information that now is difficult to get at is much broader than I think it's ever been," Hughes said. "And many of these agencies no longer play by the rules: The sense that they want people involved, or want citizens to know what they're doing, is much less than it was maybe even a decade ago."

Critics of current FOIA practices charge that the government's shift away from openness can be traced, at least in part, to an October 2001 memo to federal agencies by then-Attorney General John Ashcroft.

"Congress and the courts have long recognized that certain legal privileges ensure candid and complete agency deliberations without fear that they will be made public," Ashcroft wrote. He warned that "any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information."

Meredith Fuchs, general counsel at the National Security Archive in Washington, D.C.--a foreign-, military-, and intelligence-affairs research institute that publishes a list of the 10 longest-pending FOIA requests--noted that government agencies' data on processing times can be misleading.

"Because they report median processing times, the data doesn't give you the range of processing times or how old the oldest requests are, and those things are necessary to understand the situation," Fuchs said. "In addition, FOIA requests vary by agency. Some have very easy requests--a veteran seeking his own records, for example--whereas other agencies cannot process inquiries that quickly. The National Security Archive has requests pending with government agencies that are more than 10 years old. That is so much longer than the 20 business days required under FOIA for fulfilling a request that it's ridiculous."

In March, the archive filed a lawsuit against the Air Force, alleging that it lost FOIA requests, failed to respond to them for as long as 17 years, and discouraged the public from pursuing them. The requests cited in the complaint include 82 from the archive itself. (Nat'l Sec. Archive Fund, Inc. v. U.S. Dep't of the Air Force, No. 05CV00571 (D.D.C. filed Mar. 18, 2005).)

Fees and obstruction

For lawyers at Public Citizen Litigation Group, who often assist plaintiff lawyers in bringing FOIA litigation, the effects of FOIA stonewalling on plaintiffs can be devastating, particularly when large fees are assessed on requesters. Brian Wolfman, the group's director, noted that excessive fees charged by government agencies, ostensibly to cover the costs of fulfilling a FOIA request, usually go away when litigation is threatened or pursued.

"What this suggests is that people who don't have lawyers may well get stymied by an agency saying, 'Yes, we'll give you the information, but here's what the fee is.' And the fees can be very high," he said.

In one prominent case, People for the American Way filed a FOIA request with the Department of Justice seeking records that pertained to requests for sealing court cases involving post-9/11 immigrant detainees. When the agency denied the FOIA request and an appeal, the group filed a lawsuit to enforce compliance with the act. (People for the Am. Way v. Dep't of Justice, No. 104CV01421 (D.D.C. filed Aug. 23, 2004).)

In January, the Justice Department imposed a fee of over $370,000 to cover costs associated with providing the records. Then, in Marcia, the department said the request was overly broad and that it could not comply. At press time, a hearing was scheduled for Ma).

Plaintiffs may also incur high litigation costs when they bring a FOIA compliance case. The statute's fee-shifting provision requires the government to pay a requester's legal fees when an agency refuses to turn over records the requester has a right to. But Wolfman said the provision may be undermined by the U.S. Supreme Court's ruling in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources (532 U.S. 598 (2001).) In that case, the Court ruled that to be a "prevailing party" entitled to attorney fees, a litigant must obtain a court decision in his or her favor.

"We appreciated when Buckhannon came down that if it were to apply in the FOIA context, that would be the area where it would have the most adverse effect," said Wolfman. "The reason is that Buckhannon establishes a mootness-related doctrine: If the case moots out before you get a judgment on the merits, you don't get fees. In a FOIA case, the only thing at issue is the documents, so if they hand you the records, there would arguably be no fees under Buckhannon. In essence, all the relief you can get in FOIA cases is injunctive. But the government can always change its conduct after years of litigation without any judicial intervention."

Discovery tool

Altom Maglio, a Sarasota, Florida, lawyer, has litigated several FOIA cases related to his work representing those injured by vaccines. He noted that the government's long response time often "makes conducting presuit informal discovery using FOIA impractical. Using FOIA as a supplement to discovery in litigation is also questionable, as the lawsuit will likely be long over before you get anything."

He said his state's version of FOIA is more useful because it provides for harsher sanctions for state agency delay and improper document withholding. "It actually works as intended," he said.

One of Maglio's FOIA cases, in which Public Citizen is cocounsel, concerns a child who suffered an adverse reaction to a hepatitis B vaccine. In suing the Department of Health and Human Services over his injuries, Robert and Jackie Sharkey wanted records of the number of doses in each lot of two vaccines to help prove that the one their son received caused his injuries. (Sharkey v. Sec'y of Dep't of Health &Human Servs., No. 99-669V (Fed. Cl. filed Aug. 4, 1999).)

In March 2003, Maglio filed a FOIA request with the FDA to get the information. Fourteen months later, in May 2004, the agency responded that it did not have any records. The following month, it said that what the Sharkeys wanted was "trade secret and confidential commercial information" and thus exempt from FOIA. After appealing without a response, the Sharkeys sued to get the documents. (Sharkey v. FDA, No. 2:04-cV-552-FtM-29 (M.D. Fla. filed Nov. 10, 2004).)

Maglio noted that because vaccine claims must be filed with the National Vaccine Injury Compensation Program, "you don't get any discovery as a matter of right as a petitioner. The only discovery we could do in this case is through FOIA."

The Sharkeys' FOIA case is still pending, but a ruling in their favor could prove valuable for other vaccine injury cases. By finding out the number of doses administered in each vaccine lot, Maglio said, one call also determine whether certain lots have a higher adverse reaction rate than others. A ruling that the number of doses in vaccine lots is a public record under FOIA would be important precedent for cases involving other types of vaccines, he said.

For Michael Kirkpatrick, Public Citizen's cocounsel in the case, the litigation is a "good example of where FOIA might provide a mechanism of getting information that you might not be able to get in discovery but that could be useful for proving an element to a cause of action."

He noted that trial lawyers might also use FOIA in wage-hour cases to obtain Department of Labor investigation and enforcement data regarding particular employers. "There's a two-year statute of limitations for any violation [of the Fair Labor Standards Act], but you can reach back three years if you can show that it was a willful violation," Kirkpatrick said. "One way to prove this is to get information via FOIA to show that more than three years ago, the department's wage-hour division identified a practice that was unlawful and told the employer that they were in violation of the act and maybe assessed a civil penalty."

Public Citizen's Wolfman said bringing FOIA litigation is an essential tool for ensuring open government. "If there's not something hanging over the government, the government is not apt to follow the law," he said.

Indeed, he added, for FOIA to be effective, its fundamental principles must be respected: "What is the point of having all these rights if you can't get information in the first place?"