Democracy's backlog: the Electronic Freedom of Information Act ten years later.

I. INTRODUCTION

Congress passed the Electronic Freedom of Information Act (EFOIA) amendments in 1996, in response to the technology that has changed the way the government collects, archives, and disseminates information. (1) At the time, proponents of the amendments recognized that this technology could help promote the goals of the original Freedom of Information Act. (2) Given the speed and ubiquity of the Internet, it would seem that technology would help improve access to government information. What once may have taken months of letter writing should now be achieved by filling out an online form and clicking a button. However, as technology has removed old barriers to public records access, it has created some new ones in their place.

The EFOIA amendments to the Freedom of Information Act were intended to ensure disclosure among government agencies at a time when technology was changing the way agencies maintained records. After EFOIA became law, progress toward achieving its goals was slow. Despite notable improvements, some important goals have still yet to be achieved ten years later. (3) The reasons range from a simple lack of available resources to the seeming reluctance on the part of lawmakers and agencies to treat the task of public records maintenance as an essential component of a transparent, democratic government. This Note looks at the reasons why these problems exist and will suggest ways to improve on the EFOIA amendments. Part II examines the development of public records laws, the policy goals the laws were meant to serve, the political and technological environment that these laws reflected, and challenges the laws have faced up until the passage of the EFOIA amendments. Part III evaluates the impact of the EFOIA amendments, considers the data that has been collected and congressional testimony that has served to measure benchmarks in EFOIA progress, and analyzes the strengths and weaknesses in some current efforts to strengthen access to electronic government documents. Finally, Part IV focuses on ways that public access laws could be improved, a comparison of the ways other countries administer their public records access laws, makes suggestions on ways to ensure that the government uses available technology, and discusses how the current way of thinking about access to public records needs to catch up with technological advances.

II. HISTORY OF PUBLIC RECORDS LAW

A. Pre-FOIA Legislation

In order to understand the challenges that public records laws face, it is necessary to understand how the history of the laws reflects an evolution in the way legislators regarded public access. Public records laws were originally viewed as a means of organizing and archiving information. The first attempt at legislating the way the government handles public records came by way of the Administrative Procedure Act, passed in 1946. (4) However, the Act was not written as a means to ensure transparency and accountability; rather, it provided largely bureaucratic guidelines intended to facilitate housekeeping among the agencies by providing regulations for keeping records. (5) In fact, access was merely an afterthought, as became apparent in 1955 when Congress saw the need to clarify the new law to ensure that agencies would not interpret it as limiting disclosure. (6) It was around that time that Congress first considered passing what would become the Freedom of Information Act (FOIA). (7) With computer technology still in its infancy, it was unlikely that Congress could have anticipated the impact technology would have on public records. When legislators began considering an overhaul of the existing laws, the entire federal government owned only forty-five computers. (8) It was against this backdrop of paper-and-ink recordkeeping that Congress passed the Freedom of Information Act in 1966.

In the debate leading up to the passage of FOIA, legislators recognized that the most important aspects of the Freedom of Information Act would be its provisions for judicial review of agencies that deny access to information. (9) It was hoped that this would put an end to what then chairman of the Special Subcommittee on Government Information Representative John Moss of California called, "the day-to-day barriers, the day-to-day excesses in restriction, the arrogance on occasion of an official who has a proprietary attitude toward Government." (10)

The impetus for revising the public access laws came in part due to a campaign by journalists. (11) In fact, members of the media assisted in developing the Freedom of Information Act. (12) Journalists and public interest organizations often use FOIA in ways that have ultimately impacted policymaking. (13) But it is clear from congressional testimony like that of Rep. Moss, that FOIA was meant to do more than serve as a practical tool for journalists and others who rely on government information; it was meant to indicate a shift in the government's approach to public records away from a "proprietary" relationship to a more custodial relationship.

B. The Passage of FOIA: As Much Access as Security Permits

When President Lyndon B. Johnson signed FOIA into law, he spoke of the strong competing interests in developing open public records law: "This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation will permit. At the same time, the welfare of the nation or the rights of individuals may require that some documents not be made available." (14)

FOIA specifies which documents agencies must make available to the public. (15) The Act specifically excludes the following categories of information:

1) Information that is classified for national defense or foreign policy purposes;

2) Information that relates solely to an agency's internal personnel rules and practices;

3) Information that has been clearly exempted under other laws.

4) Confidential business information, such as trade secrets;

5) Internal government deliberative communications about a decision before an announcement;

6) Information about an individual that, if disclosed, would cause a clearly unwarranted invasion of personal privacy;

7) Law enforcement records, particularly of ongoing investigations;

8) Information concerning bank supervision;

9) Geological and geophysical information, such as maps. (16)

A FOIA request typically starts with a letter sent to an agency. (17) The requester should then receive an acknowledgment from that agency. (18) The statute requires that the agency respond within twenty days of receiving the request. (19) However, an agency can extend the time limit for ten days where "unusual circumstances" exist. (20) Unusual circumstances may include the need to gather documents from different offices, a request for a voluminous amount of information, or the need to consult with other agencies. (21) If the agency needs to clarify a request, that agency may contact the requester. (22) The agency may release the requested document, parts of the document, deny the request, or find no documents that match the request. (23) A requester may seek an administrative appeal if he disagrees with the agency's determination. (24) If the agency denies appeal, or the requester disagrees with decision, FOIA grants the federal courts jurisdiction to hear the dispute. (25)

FOIA creates a cause of action against an agency that denies documents. (26) However, challenging a FOIA denial in court usually requires exhausting any administrative appeals. (27) A court can find constructive exhaustion if the agency does not follow its statutory requirements, for example, by failing to reply to the document request or appeal. (28) The burden in FOIA cases rests on the agency that denies access. (29) By statute, courts may only grant injunctive relief against an agency. (30) Although monetary damages are not an option, the statute does provide for fee-shifting. (31) Courts will award attorneys fees if the prevailing party has "substantially prevailed" and is entitled to fees. (32)

When Congress passed FOIA, its supporters heralded the legislation as providing the kind of judicial review that would ensure transparency in government. (33) However, this has not always been the case. The process of review can be costly and time consuming for the average requester without the resources of a media outlet or well-organized watchdog organization. While the law was written with the help of media companies that may have the resources to fight a denial, the landscape has changed significantly since the 1960s. Today, computers and the Internet make it easier for individuals to request information by email and through online research that may lead them to seek out additional information that is not readily available through agency websites. Furthermore, the media itself has changed. The advent of weblogs has changed the definition of journalists and enabled those with scarce resources to publish journalistic pieces for mass consumption. Even with the fee-shifting provision provided in FOIA, an individual would be taking a chance by initiating litigation over a denied request.

Congress recently sought to address some of these concerns by passing the Openness Promotes Effectiveness in our National Government Act of 2007 (2007 OPEN Government Act). (34) Among other improvements to FOIA, the OPEN Government Act refined the definition of a media requester for the purposes of determining search fees to include internet journalists and bloggers, and lowering the standard that a requester must meet under the fee-shifting provision. (35)

C. Amendments to FOIA and Related Legislation

Passage of FOIA may have represented a significant shift in the way Congress viewed public information, but not all government agencies embraced this change. As a result of continued problems accessing government records, and in the wake of the Watergate investigation, Congress passed the first set of amendments to FOIA six years after the original bill became law. (36) At the time, agencies had been weakening FOIA. (37) For example, agencies would charge $1 per page and $7 per hour for searches. (38) The proposed amendments set off debate in Washington and created a conflict between the executive and legislative branches when President Gerald Ford, and his then Chief of Staff, Donald Rumsfeld, and Deputy Chief of Staff, Dick Cheney, worried that increased access to public records would encourage leaks of sensitive information. (39) Ford vetoed the bill containing the proposed amendments, but Congress overrode the veto. (40)

Although it is the most prominent piece of legislation affecting public access, the Freedom of Information Act is only one of a series of laws that govern disclosure of government information, including The Paperwork Reduction Act and the Information Quality Act. (41) Additionally, Congress passed the Privacy Act in 1974, limiting personal information that the government can disclose. (42) The Privacy Act also allows individuals to request information about themselves. (43) As legislators continued to fine tune FOIA, none of the amendments addressed the changes about to be brought on by new technology, until the Electronic Freedom of Information Act amendments in the 1990's.

D. The Electronic Freedom of Information Act Amendments

During the debate over FOIA prior to its passage, Assistant Attorney General Norbert A. Schlei warned that the issue of access to public information was "just too complicated, too ever-changing" to deal with all at once. (44) As it turned out, he was right. As technology changed, contributing to the complicated nature of public access laws, Congress began to respond.

Thirty years after passage of FOIA, Congress passed the Electronic Freedom of Information Act (EFOIA) amendments. Congress intended in part to require that agencies keep documents in electronic format, and to clarify that FOIA covers requests for electronic documents. The amendments also included reporting procedures, provisions for "multitrack processing," and other additions intended to ease the flow of information. (45) At the time the EFOIA amendments were passed, agencies had been handling more than 600,000 FOIA requests annually. (46)

Congress recognized the changing form of documentation, the growing number of requests, and the need to reconcile these changes with a policy favoring disclosure. (47) In response, it sought to clarify and expand existing public document laws through the EFOIA amendments. (48) At the same time, there was recognition that the enormous amount of information and the growing number of requests presented a challenge. When President Bill Clinton signed the EFOIA amendments into law, he issued a statement that said in part: "In a period of government downsizing, the numbers of requests continue to rise. In addition, growing numbers of requests are for information that must be reviewed for declassification, or in which there is a proprietary interest or a privacy concern. The result in many agencies is huge backlogs of requests." (49) The amendments addressed such concerns by increasing the deadline for agencies to respond from 10 days to 20 days, allowing extended deadlines in certain circumstances, and establishing procedures for processing complex requests. (50)

Congress had also hoped that the amendments would reduce the burden on agencies by resulting in fewer requests. (51) One way it hoped to reduce the burden was by requiring that agencies make available information that has been, or is likely to become, frequently requested. (52) The idea was that if an agency anticipated a great deal of public interest in a particular type of information, they could put it in a location where the public could easily access it, such as a website, thus easing the strain of resources brought on by multiple requests for the same information. The EFOIA amendments also included a provision intended to ease the process of requesting information by requiring agencies to prepare "reference material or a guide for requesting records...." (53) This includes an index of information maintained by the agency, information on the record system the agency uses, and a FOIA handbook. (54) The intention was to process requests more quickly and easily by guiding the public through the proper channels from the start.

In addition to achieving the practical goal of reducing the information backlog, these provisions were also an important next step in changing the philosophy toward public records. It encouraged agencies to think of information in terms of its utility to the public before the public requested it. By requiring agencies to make available information that was likely to be requested, Congress indicated that it was no longer sufficient to file away data. Agencies would have to consider releasing it to the public as a regular practice. The amendments included a clarification that open public records include records "in any format, including an electronic format." (55) It also required that agencies provide an index of the information it keeps. (56) Agencies had until November 1996 to begin keeping records "by computer telecommunications or, if a computer telecommunications means have not been established by the agency, by other electronic means." (57) The amendments further required that an agency fill requests for information "in any form or format requested by the person," and that the agency "shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system." (58) Congress built into the amendments a provision requiring agencies to provide annual reports on their compliance. (59) Annual reports must include the number of FOIA requests, determinations and appeals conducted in the agency, the number of pending requests, and the number of days those requests have been pending. (60) The Attorney General is responsible for collecting the annual reports and making them available in electronic format. (61)

Congress also sought to minimize the impact on agencies and delays in filling requests by providing for "multitrack processing," which involves assigning requests to tracks according to how quickly they can be filled. (62) The agency must give a person, who submits a request assigned to a slower track, the opportunity to narrow the request. (63)

The EFOIA amendments also anticipated "unusual circumstances" under which an agency may extend the time limit for filling requests. (64) Congress defined unusual circumstances as cases in which documents may be scattered, where there is a "voluminous amount" of documents, records, and "the need for consultation" among agencies. (65)

Agencies should expedite requests when the requester "demonstrates a compelling need." (66) The amendment defines "compelling need" as a situation where:

   The failure to obtain requested records on an expedited basis ...
   could reasonably be expected to pose an imminent threat to the life
   or physical safety of an individual; or with respect to a request
   made by a person primarily engaged in disseminating information,
   urgency to inform the public concerning actual or alleged Federal
   Government activity. (67)

The EFOIA amendments were a first step toward recognizing the changing nature of government information, in effect, by keeping the focus on the purpose of the Freedom of Information Act. Where agencies might have previously attempted to block the release of information based on its format, the EFOIA amendments made it clear that the law applies to the information itself, rather than the form of the information. It is not intended to apply to the tangible documentation, but the information contained therein. The EFOIA amendments facilitated oversight by requiring annual reports. However oversight is only effective if legislators are willing to provide it. Multitrack processing and indexing frequently requested information were also an important step toward eliminating the backlog. Were it not for these provisions, one can only speculate as to how much worse the current backlog would be. Nevertheless, these were all first steps, and an evaluation of the FOIA requests will show that the backlog of information requests continues to grow.

II. UNINTENDED CONSEQUENCES: EFOIA AND THE FLOOD OF REQUESTS

A. The Challenges of Compliance

By 2003, federal agencies were receiving 3.2 million FOIA requests annually. (68) Paradoxically, EFOIA's achievements may have given rise to its greatest challenges. The task of managing such a large number of requests can be a costly and time consuming proposition, and the task often does not take priority in agencies that view FOIA compliance as a secondary responsibility.

Shortly after the EFOIA amendments went into effect, some saw it as increasing the burden on agencies while failing to provide either the necessary funding increase or a new framework for providing disclosure in a way that conforms to technology. (69) There was also concern over the permissive requirements that agencies provide information in the form requested. (70) Within a few years of its passage, agencies were slow to implement the provisions of EFOIA. (71) Suggestions for improving agency compliance included providing incentives for compliance or regular oversight. (72)

B. Efforts to Fine Tune EFOIA

Since then, Congress has passed legislation to complement EFOIA. The E-Government Act of 2002 expanded on the EFOIA amendments by addressing the use of the Internet as a tool to increase access to public records. (73) It sought to improve the availability of public records through electronic means. (74) It established within the Office of Management and Budget an Office of Electronic Government authorized to write guidelines for electronic recordkeeping and access, and to implement those guidelines. (75) When Congress passed the E-Government Act of 2002, it acknowledged that there had been "uneven success in applying advances in information technology to enhance governmental functions and services, achieve more efficient performance, increase access to Government information, and increase citizen participation in Government." (76)

The Information Quality Act is intended to ensure that agencies disseminate correct information. (77) The Act authorized the Office of Management and Budget to advise agencies on the best way to ensure their information was useful and accurate. (78) Yet the act was vague and there was little legislative history. (79)

Finally, the Paperwork Reduction Act sought to streamline the way in which agencies collect information. (80) The Act was meant to reduce the amount of paperwork that agencies require, but made only passing references to "the effective use of information technology." (81)

In August, 2007, the Senate passed the OPEN Government Act, which made a series of reforms to FOIA. (82) The Act opens the definition of news media to apply to bloggers and internet journalists who are not associated with a media institution. (83) It allows a requester to recover attorney fees if, after an agency denies a request, the agency unilaterally decides to release the requested documents where the requester's complaint is not frivolous. (84) The Act requires agencies to assign tracking numbers to requests, and to make tracking information available online. It also creates an Office of Government Information Services to audit agency compliance and mediate disputes between agencies and requesters. (85)

The Executive branch has also shaped public access laws since the passage of the EFOIA amendments. Executive Order 13,166, signed by President Bill Clinton, addressed access to information for people who understand limited English. (86) However, the order only focused on the ability to deliver government services to people with limited English proficiency. Most recently, President George W. Bush signed Executive Order 13,392, requiring agencies to appoint a chief FOIA officer to review compliance and submit a report. (87) Concerns about national security have also led to policy changes, including the clarification of which records should be classified for national security purposes. (88)

The attorney general's office has influenced the policy on disclosure, resulting in modifications to the way government agencies handle requests. The guidance that the attorney general's office has provided reveals how different administrations dealing with different national circumstances can have a profound affect on the government's attitude toward disclosure. In 1993, Attorney General Janet Reno ordered that agencies not classify information as exempt from FOIA unless the disclosure would cause "foreseeable harm." (89) Under Attorney General John Ashcroft, and one month after the terrorist attacks of Sept. 11, 2001, the pendulum swung in the opposite direction. Ashcroft issued a memo assuring agencies that the government would defend their invocation of the exemptions to FOIA and encouraged agencies to consider using such exemptions. (90) The impact of such policy decisions and the transient nature of such policies underscore the difficulties in establishing a cohesive, government-wide approach toward disclosure.

The patchwork of legislative and administrative measures that have affected public disclosure throughout the years also provide a glance at how public access law continues to evolve. However, none of the changes since the EFOIA amendments have attempted to ameliorate the backlog of requests, or update existing laws to better reflect the changes in information technology.

III. THE COURTS RESPOND

A. The Exemption Standard: The Vaughn Index

The courts have also shaped public information laws and in some cases helped to identify FOIA's shortcomings. For example, in Vaughn v. Rosen, (91) the D.C. Circuit heard an appeal from the District Court concerning a law professor who sought documents from the Civil Service Commission relating to the evaluation of personnel management programs. (92) The trial court granted the government's motion for summary judgment on the basis that the information was exempt. (93) On appeal, the D.C. Circuit remanded. (94) In its decision, the court contended that FOIA disputes lead agencies to label information as exempt from disclosure more often than is appropriate. (95) The court observed:

      First, there are no inherent incentives that would
   affirmatively spur government agencies to disclose information.
   Under current procedures government agencies lose very little
   by refusing to disclose documents....

      Secondly, since the burden of determining the justifiability of
   a government claim of exemption currently falls on the court
   system there is an innate impetus that encourages agencies
   automatically to claim the broadest possible grounds for
   exemption for the greatest amount of information. Let the court
   decide! (96)

In an attempt to solve these problems, the court set out to develop a test that would "(1) assure that a party's right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the court system effectively and efficiently to evaluate the factual nature of disputed information." (97) The court envisioned a test that would provide "a system of itemizing and indexing that would correlate statements made in the Government's refusal justification with the actual portions of the document." (98) Such an itemizing became known as the "Vaughn Index," which courts use to determine whether information is exempt from disclosure. (99)

While the court emphasized the government's responsibility for providing the greatest amount of disclosure, it failed to do much more. The court noted: "A sincere policy of maximum disclosure would truncate many of the disputes that are considered by this court. And if the remaining burden is mostly thrust on the Government, administrative ingenuity will be devoted to lightening the load." (100) Still, the decision put the government on notice that the court would hold agencies to their statutory burden when reviewing denials.

B. "Any Form or Format": How Information Gets Delivered

In TPS, Inc. v. Dep't of Defense, (101) the Ninth Circuit set out to decide how information in public records requests should be delivered. The court was asked to interpret the clause in the Freedom of Information Act that requires agencies to provide requested information "in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." (102) Specifically, the court examined the federal regulatory guidance that instructs agencies to provide information in a format that is used in "business as usual." (103)

In TPS, a private company that collects data requested information from the Department of Defense regarding the agency's contracts. (104) The company requested records in "zipped" format. (105) The Department of Defense offered to deliver the information in one of two other formats, but TPS appealed, arguing that the Department had previously provided zipped data. (106) The District Court for the Northern District of California granted summary judgment for the government. (107) The Ninth Circuit reversed, finding that the District Court erred in interpreting the "business as usual" test. (108) The district court limited the inquiry to whether the Department of Defense normally provides normally zipped files in response to FOIA requests, but the Ninth Circuit found this inquiry too narrow. (109) The court concluded: "[i]nstead, the relevant inquiry is whether, in general, the format is one that is readily reproducible by the agency." (110)

Essentially, it does not matter whether an agency produces documents in a given form for FOIA or any other purposes. The court stated that if the agency produces such a document format for any reason, then producing that format "does not impose an unnecessarily harsh burden, absent specific, compelling evidence as to significant interference or burden." (111)

The decision helped clarify once again that access is the FOIA's paramount concern, and as technology makes it easier to convey larger amounts of information in more manageable formats, the government must adapt accordingly. Other courts have followed the TPS decision. Most recently, the D.C. Circuit cited the TPS decision in holding that an inmate who requested information from the Bureau of Prisons was entitled to receive the information in electronic format, as requested. (112)

Although the courts uniformly favor delivering information in the format requested, it is worth noting that the TPS decision discussed a split among federal courts on the standard of review applicable to FOIA summary judgment motions. (113) In the TPS decision, the Ninth Circuit applied a two-step inquiry. The first step seeks to determine whether the ruling below was based on "an adequate factual basis." (114) If the court finds "an adequate factual basis" for the decision, it then may apply either a de novo or "clear error" review. (115) In TPS, the court applied a de novo review because it sought an interpretation of the statute. (116) The court noted that other courts apply a strict de novo review. (117)

C. Dealing with Delays and "Exceptional Circumstances"

Another important question regarding FOIA deals with the amount of time that an agency may take to respond to a request for documents. In Open America v. Watergate Special Prosecution Force, the D.C. Circuit Court sought to clarify special circumstances that justify an increase in the statutory time limit. (118) The 1974 FOIA amendments allow agencies twenty days to determine whether they will comply with the request and notify the requester of its decision. (119) In case of a denial, the requester may appeal to the agency, which also has twenty days to respond. (120) However, the court can "allow the agency additional time" to respond to a request made in "exceptional circumstances," provided "that the agency is exercising due diligence in responding to the request...." (121) In Open America, the court attempted to determine whether a backlog of cases qualified as "exceptional circumstances." Open America was decided before the computer age, when the FBI began its process of filling FOIA requests by searching "58 million index cards of subjects and individuals." (122) When the FBI received the request at issue, the agency had 5137 pending requests and had begun filling 1084 of them. (123) The court held that the FBI proved exceptional circumstances existed because of the volume of requests it received, and that it showed due diligence in filling the requests because of the process the FBI adopted for handling such requests. (124)

The EFOIA amendments codified the court's holding in Open America. The amendments provided that "[i]f the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records." (125) The Act indicated that "the term 'exceptional circumstances' does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests." (126) Additionally, Congress instructed that courts deciding such a question must consider whether the requester is willing to work with the agency on an "alternative time frame for processing a request...." (127)

The court applied this section in addressing the question of whether an agency can claim exceptional circumstances when the agency lacks the resources to handle requests in Electronic Privacy Information Center v. United States Dep't of Justice. (128) The plaintiff sought information on the FBI's use of a private company that provides database information. (129) Citing Open America (130) and the EFOIA amendments, (131) the court granted the government's motion for a stay of proceedings. (132) The court noted that in providing an exception for exceptional circumstances, Congress "sought only to 'clarify that routine, predictable agency backlogs for FOIA requests do not constitute exceptional circumstances.'" (133) Here, the court foreclosed what could have been a broad exception to disclosure.

However, the court found that the large number of requests pending at the FBI, the inadequate resources to deal with the requests, and the progress that the FBI had made in reducing its backlog, are sufficient to find exceptional circumstances exist. (134) The court pointed out that one portion of the request in question resulted in documents totaling 5000 pages. (135) The agency had to review the documents to determine whether any of the information fell into FOIA's exceptions. (136) The court also examined the history of the FBI's FOIA responses and found that the agency responded to a large increase in requests by seeking funding from Congress for additional staff, which it received. (137) While the court found that the FBI had reduced its backlog through good faith efforts, the agency still lacked the resources to respond to requests like the one in question. (138)

The court's holding is troubling for a number of reasons. If "exceptional circumstances" are found where an agency claims inadequate funding, agencies may make a half-hearted request for more funds but will not necessarily have the incentive to vigorously push for the level of funding necessary to handle requests knowing they can simply allow a backlog to build and then claim exceptional circumstances. Although the court also considers whether the agency shows efforts at reducing the backlog, this is a highly subjective question and it can be difficult if not impossible for a requester to rebut an agency's assertion that it is doing all it can do.

D. Attempting to Define the News Media

The definition of "News Media" has a significant impact on the ability to request documents, because FOIA permits reduced search fees for such organizations. (139) As the nature of the news media has itself changed over the years, the courts have attempted to provide definitions that keep up with such changes.

In National Security Archive v. United States Department of Defense, (140) the D.C. District Court defined a news media representative as "a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." (141) The widespread availability of web publishing tools means that virtually anybody can gather information, turn it into a distinct work, and distribute it to an audience. However, the way Congress defines "editorial skills" may determine whether a distinction exists between an independent journalist and anyone with an internet connection.

In determining the definition of news media, the court in National Security Archive looked to determine whether the Freedom of Information Reform Act of 1986 (FIRA) (142) contemplated that a non-profit organization such as the National Security Archive would fit the definition of news media for the purposes of the Freedom of Information Act's preferential pricing. (143)

The court determined that the following factors relating to the National Security Archive's activities qualified the organization as a member of the news media: previous publication, an intention to publish in the future, and the gathering of information to be compiled and disseminated to the public. (144) The court believed that these factors supported the legislative intent of providing preferential pricing for news media:

   The relevant legislative history is simple to state: because one of
   the purposes of FIRA is to encourage the dissemination of
   information in Government files, as Senator Leahy (a sponsor) said:
   "It is critical that the phrase 'representative of the news media'
   be broadly interpreted if the act is to work as expected.... In
   fact, any person or organization which regularly publishes or
   disseminates information to the public ... should qualify for
   waivers as a 'representative of the news media." (145)

IV. THE IMPACT OF THE ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS

A. Tracking the Progress

Congress passed the EFOIA amendments with the intention that "[g]overnment agencies should use new technology to enhance public access to agency records and information." (146) Since the amendments went into effect, the Government Accountability Office (GAO) has tracked agencies' progress towards compliance. As these periodic assessments show, the results have been mixed.

In 2001, the GAO found that "agencies had not provided online access to all of the information required by e-FOIA." (147) A year later, the GAO found difficulty in identifying trends because of changes in the way agencies report on FOIA compliance. (148) Yet, the inquiry did reveal that "agency backlogs of pending requests are substantial and growing government-wide." (149) The report attributed the growing backlog to the "increasing complexity of the requests." (150) The report further cited hard-to-find materials, and non-functioning Web links. (151) In 2001, the median number of days for an agency to fill an information request varied from seven days (simple track requests at the Central Intelligence Agency) to 1,788 days (complex track requests at the Department of Energy). (152) Not all agencies reported. (153)

In all, agencies processed two million requests at a cost of more than $270 million. (154) In 2002, seven out of the twenty-five agencies surveyed had not complied with EFOIA by placing all required information online. (155)

Three years later, GAO released another report that identified a still increasing number of FOIA requests. (156) Between 2002 and 2004, the number of information requests increased 71 percent. (157) As the number of requests increased, so did the backlogs--at a rate of 14 percent. (158) The report concluded that "given this steady increase in workload, it will remain critically important that strong oversight of FOIA implementation continue in order to ensure that agencies remain responsive to the needs of citizens." (159)

Finally, in 2006, the GAO reported again to Congress on agency progress in processing FOIA requests. (160) Again, the GAO found an increasing number of information requests, although the rate of increase had remained steady. (161) Agencies processed 25 percent more requests between 2002 and 2005. (162) The backlog continued to grow. Within that time period, "the number of pending requests carried over from each year has been steadily increasing, rising to about 200,000 in fiscal year 2005--43 percent more than in 2002." (163) The backlog grew at 24 percent between 2004 and 2005, up from 11 percent the preceding year. (164)

B. The Slow Pace of Compliance

In her testimony to Congress, Patrice McDermott of OpenTheGovernment.org expressed concern about agency compliance with EFOIA requirements. (165) Specifically, McDermott argued agencies have failed to comply with the affirmative requirements of posting frequently requested documents online, and reference guides explaining how to request documents. (166) Discussing agency responses to a survey evaluating their compliance with EFOIA, McDermott told the subcommittee:

   What is most striking to me is the future-oriented language used to
   describe what most of the agencies plan to do in these areas. Bear
   in mind that we are almost 10 years out from the passage of the
   1996 Amendments and over 9 years beyond the point at which most of
   the requirements set out therein were supposed to have been met.
   And yet, repeatedly, in the narratives we find that said agency
   will meet these statutory requirements--with the promised date
   often being mid-2007. (167)

McDermott concluded that the lack of compliance represents one of FOIA's shortcomings and argued there are neither enforcement mechanisms nor repercussions for ignoring these requirements. (168) The problem, she said, may simply come down to funding:

   Agencies tell in these plans of not having money for scanners or
   copiers. Some of this may be excuse-making, but from the work I
   have done over the years with FOIA officials through the American
   Society of Access Professionals (ASAP), I know that most of them
   are dedicated public servants who believe in public access and are
   proud of the role they play in our society. (169)

McDermott recommended that Congress increase funding for FOIA programs, hold agencies accountable for compliance, and pass the OPEN Government Act. (170)

The pace of compliance varies greatly from agency to agency. Some government agencies have taken up to 12 years to fill FOIA requests for information, while other agencies respond more readily. (171) Two reports by the National Security Archive in 2007 provided a bleak assessment of FOIA compliance. (172) The research organization concluded that "[t]en years after the provisions of the Electronic Freedom of Information Act Amendments (E-FOIA) came into force, the Executive Branch still has not obeyed Congress' mandate for change." (173) In a survey of various agencies' backlogs of requests, the National Security Archive discovered that the oldest pending request had been submitted to the Department of State in 1987. (174) A report on the survey concluded that improved tracking of FOIA requests and stronger reporting requirements were needed, and called on Congress to strengthen FOIA through legislation. (175)

Clearly, among all of the legislative, judicial, and executive branch attempts at fine tuning public access laws, none have succeeded in reining in the mounting backlog. But even as late as the summer of 2007, lawmakers have continued trying to unclog the information bottleneck.

C. Current Legislation to Upgrade FOIA

Congress has taken note of the shortcomings inherent in FOIA and proposed updates. In August, 2007, the Senate passed one such proposal: the OPEN Government Act. (176) It marked the first reform to FOIA since the EFOIA amendments of 1996. (177) Among the bill's provisions are those that would allow requesters to track their requests by phone and Internet. It would also recognize writers of blogs and other web sites on the same level as traditional news sources for the purposes of waiving FOIA search fees. (178)

Watchdog groups lauded the bill when both the Senate Judiciary Committee and the House Government Reform Subcommittee on Government Management, Finance and Accountability approved The OPEN Government Act in September, 2006. The Reporter's Committee for Freedom of the Press said the law would close loopholes that have undermined the effectiveness of FOIA. (179) The Sunshine in Government Initiative, which is comprised of media associations, called the bill "the most comprehensive legislation to reform [FOIA] in a decade." (180) However, by expanding the definition of news media to ensure that bloggers will not have to pay fees, (181) there is a danger that it will invite a new wave of requests without providing agencies with the means to handle them.

An amendment to the bill incorporated the language of the decision in National Security Archive v. United States Department of Defense that provided a definition of the media for the purposes of setting fees. (182) Although the purpose of the amendment was to avoid an overly broad definition of the news media by limiting the definition to those who intend to publish, (183) the bill still must be accompanied by a plan to address the potential increase in requests, or risk exacerbating an already significant backlog. In discussing his proposed amendment, Senator John Kyl said that it made sense to incorporate the language of the National Security Archive decision because "given that the term news media as used in FOIA has been in effect for 17 years, I do not think that anyone can reasonably fear that codifying it will turn the world upside down." (184) However, technology has greatly changed the news media over the last 17 years, raising the question: will government agencies be able to keep up with the growing number of "news media" outlets on the internet? While the decision in National Security Archive drew an analogy between news media and non profit organizations, it is unclear that the same analogy should be drawn between news media and bloggers, particularly when nearly any person with an internet connection may be considered a blogger.

Other proposed bills have offered amendments designed to reduce backlogs. The Faster FOIA Act of 2005 proposes a commission to investigate delays in FOIA processing. (185) The commission would "conduct a study to identify methods that will help reduce delays in the processing of requests submitted to Federal agencies under [FOIA]; and ensure the efficient and equitable administration of [FOIA] throughout the Federal government ..." (186)

Finally, the Restore Open Government Act of 2005 (187) addresses some of the measures agencies have used since September 11th to avoid disclosure of certain government documents. It would revoke the Ashcroft Memo, (188) prohibit secret advisory committees, (189) and end the practice of keeping non-classified documents private. (190) Furthermore, it would amend the Homeland Security Act of 2002 by refining its disclosure provisions, including an effort to narrow the disclosure exemption for information provided to the government on a voluntary basis. (191)

With the proposed cures for the excessive backlogs that EFOIA was originally meant to ameliorate, Congress makes modest attempts at increasing agency accountability, but additional funding is also needed to give teeth to FOIA in a quickly changing technological environment. Further, the changing guidance from the executive branch and the Department of Justice has hindered real reform in FOIA law. More importantly, while the current proposals to adjust FOIA are encouraging, they fall short of what is really needed: a new way of thinking about the way the government handles information.

V. LOOKING AHEAD

A. Finding a Broader Approach

The changes to FOIA that have been proposed and passed represent a good first step toward greater efficiency and reducing backlogs, but adapting public records law for changing information technology requires a broader approach that includes streamlining the process for reviewing documents, improving communication between agencies and the people and organizations that request documents, stronger incentives for agencies to comply with FOIA, and better agency funding for FOIA-related expenses.

Agencies now go through a complicated screening process to identify potentially exempt information before filling the request. (192) Privacy, security, and a concern for protecting proprietary data are among the reasons why such screening is necessary. Agencies could significantly reduce the time it takes to evaluate documents by categorizing groups of documents that potentially raise such concerns and publicizing the categories along with descriptions of the general type of information they include. (193) This would not only allow the agencies to more quickly determine which documents may potentially be exempt, but also puts requesters on notice that the documents they seek could be subject to review for exemption from FOIA. Requesters then could decide to narrow their requests to avoid such review, or contest the categorization of a particular type of document in advance of requesting the documents. This would eliminate time wasted when agencies first review the documents only to determine they are exempt prior to such a challenge, and it would promote greater cooperation between the requester and the agency.

Delays also result from poor communication between agencies and potential requesters. (194) Although the EFOIA amendments sought to solve this concern in part by requiring agencies to make frequently available documents available, and by producing a guide to FOIA requests, the request process could be clearer. Developing a more efficient request process can only come from a discussion that includes all stakeholders--journalists, government officials, privacy advocates, and others who can best represent the competing interests involved.

As the line of FOIA cases has shown, there is little incentive for agencies to comply with FOIA. (195) However, both Congress and the courts can change this. Tying compliance to agency funding would give agencies a strong impetus to seek efficiencies, but more would be needed. Clearer guidelines that help determine what is disclosable could help agencies comply while reducing the need to litigate FOIA disputes. Additionally, while court decisions like the Electronic Privacy Information case recognize allowances for agencies that make progress in reducing their backlog, (196) a more effective approach would include allowances for agencies that make progress in improving their overall FOIA process. Reducing backlogs can be helpful, but it makes little difference to the agency when the next surge of FOIA requests pours into its offices. Stricter enforcement, including more aggressive oversight, would not only send the message to agencies that someone is watching over them, but also it would send the message that transparency is an indispensable component of our form of government. (197) As McDermott testified before Congress:

   Even the Department of Justice, which Congress arguably intended to
   have oversight responsibility in the Executive Branch for the
   implementation of these amendments, has not fully implemented them
   (according to their own report). Nor has the Office of Management
   and Budget which has oversight responsibilities for information
   policy across the Executive Branch. (198)

Finally, funding FOIA programs must take greater priority than it has in the past. (199) The level of funding necessary to carry out the government's responsibilities under FOIA can be a difficult number to measure, especially because past estimates of the cost of FOIA administration have been so unreliable. (200) Until the government undertakes a reliable estimate of the cost of administering implementation of FOIA programs, policy makers will not be able to start confronting the question of cost.

B. International Approaches to Public Information

An analysis of other countries' public records laws reveal a range of approaches that could help alleviate the backlog of requests. For example, some countries have adopted a form of alternative dispute resolution built into the government. Along these lines, the OPEN Government Act envisions this type of approach by creating the "Office of Governmental Information Services." (201) The office would audit agency compliance with FOIA, make recommendations to Congress concerning whether agencies are receiving adequate funding to comply with FOIA mandates, and provide mediation between requesters and agencies. (202) The creation of this agency will not only go a long way toward addressing the root causes of the backlog problem, but will also allow the United States to take advantage of the success that other countries have found through similar programs.

For instance, the Canadian government has established the Office of the Information Commissioner headed by a Parliamentary-appointed officer who acts as an ombudsman to mediate disputes between members of the public and the various governmental agencies. (203) Under this model, federal courts review document requests only after negotiations have failed. (204) The Canadian system appears to have benefits, including reduced litigation. However, it is difficult to gauge whether these benefits directly affect the backlog of requests. The Canadian government does not collect information on delays in filling information requests. (205) Yet in the report to Parliament, the Information Commissioner stated that based on anecdotal evidence, "it appears that the problem of delay remains a significant concern. This year, a higher percentage of complaints were delay complaints than was the case last year." (206) The report blamed such problems, in part, on a pervasive attitude that places politics above good governance:

   [T]he name of the game, all too often, is how to resist
   transparency and engage in damage control by ignoring response
   deadlines, blacking-out the embarrassing bits, conducting business
   orally, excluding records and institutions from the coverage of the
   Access to Information Act, and keeping the system' s watchdog
   overworked and under-funded. (207)

Similarly, the United Kingdom's Information Commissioner's Office is meant to be an independent resource for the public that assists in public record requests as well as topics including data protection and spam emails. (208) When a government agency denies an information request, the requester may file a complaint to the ICO. (209) Unlike the Canadian system, the United Kingdom grants quasi-judicial authority to the ICO. The office has the power to direct an agency to turn over information, and an agency that does not comply with an order may be found in contempt of court. (210) Decisions are appealable to a separate Information Tribunal. (211)

The ICO was established to enforce the United Kingdom's Freedom of Information Act of 2000. (212) In the first annual report since the legislation was enacted, agencies revealed that they received a small number of requests compared with the number of requests handled by American government agencies. Agencies receiving requests from the public saw an average annual increase of 95 requests. (213) Nevertheless, the ICO anticipates a backlog of 450 pending cases during 2007 and 2008. (214) The office requires additional funding to address this backlog. (215)

While the Canadian and British approach may suffer from some of the same shortcomings as the American system, it highlights one of the glaring deficiencies of FOIA: the lack of an office dedicated to the issue of public records access that can act as an advocate for the public in resolving public access disputes. The OPEN Government Act's (216) provision creating an Office of Government Information Services would "offer mediation services between persons making requests under [FOIA] and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, issue advisory opinions if mediation has not resolved the dispute." (217) While such an office would lack the authority that the British model offers, it would be an encouraging first step. With adequate funding, proper staffing, and insulation from political pressures, such an office could be extremely effective.

C. Changing the way Government Handles Information

A public body charged with the task of mediating disputes, such as the one established in the United Kingdom, may help bring a timely resolution to disputed requests. However, the government must also be prepared in the event that new and unforeseeable innovations in technology create new challenges to the ability of agencies to comply with public disclosure laws. In 1966, when FOIA became law, legislators could not have been expected to foresee developments in technology that would produce such a change in the way society thinks about the delivery and dissemination of information. It would be a mistake to assume that information technology is finished evolving.

Today, information that is not collected solely for public consumption works its way through government agencies in essentially the same way it has for the last several decades. Once agencies collect or produce documents for their own purposes, there is no effort to handle those documents in a way that would facilitate public disclosure. While FOIA went a long way toward sending the message that information does not belong to the government, it must still be emphasized that the information belongs to the public. By approaching the backlog problem from this viewpoint, common sense measures can help make the cumbersome task of releasing information much less daunting. Creating a vast online archive of information before it is requested is not beyond the government's technological capabilities, and it can be achieved while balancing the competing concerns of privacy and national security.

VI. CONCLUSION

As technology makes it easier to request information from the government, and for the government to collect more information, the laws that govern information access have failed to account for the resulting surge in public records request. Consequently, a backlog has developed, and continues to grow, that threatens the government's ability to handle such requests. Attempts at modifying public disclosure laws have included steps toward modernizing the law so that it better reflects the nature of information delivery, but have fallen short of reducing the backlog. Changing policies have made it more difficult to identify a consistent approach toward public information. And while court opinions have ensured that the laws reflect the changing technology, the decisions have done little to give agencies the tools they need to keep up with those changes.

Underfunding continues to be a problem that slows compliance with the Freedom of Information Act. In order to begin addressing the problems with the law, the government must follow through with one of the original goals of the Act: to change the way agencies view information, from a view that favors a proprietary attitude toward government information to a view of government information as belonging to the public.

While the current regime of oversight provides a way to measure compliance, there are few incentives for agencies to comply with information requests, particularly when dealing with individuals who may not have the resources to litigate disputes. Any new legislation must include greater accountability for agencies that fail to comply with the Freedom of Information Act. The passage of the OPEN Government Act goes a long way toward achieving this, but more reforms are needed.

Additionally, a more cooperative attitude toward working with the public to make information more accessible, similar to the philosophy engendered by other countries that regularly mediate such disputes, would help ease the backlog by providing a more efficient way to resolve disagreements, while maintaining protection of information subject to privacy and national security concerns.

(1.) See P. STEPHEN GIDIERE III, THE FEDERAL INFORMATION MANUAL: HOW THE GOVERNMENT COLLECTS, MANAGES, AND DISCLOSES INFORMATION UNDER FOIA AND OTHER STATUTES 150 (2006).

(2.) See infra Part II.D.

(3.) Some have argued that government agencies have simply failed to follow the mandates of the EFOIA amendments. See NATIONAL SECURITY ARCHIVE, FILE NOT FOUND: 10 YEARS AFTER E-FOIA, MOST FEDERAL AGENCIES APE DELINQUENT, 1 (March 12, 2007), at http://www.gwu.edu/~nsarchiv/NSAEBB/ NSAEBB216/e-foia_audit_report.pdf. (concluding that "Ten years after the provisions of the Electronic Freedom of Information Act Amendments (E-FOIA) came into force, the Executive Branch still has not obeyed Congress's mandate for change.") (last visited Mar. 8, 2007). [hereinafter FILE NOT FOUND].

(4.) Administrative Procedure Act of 1946, Pub. L. No. 109-279, 60 Stat. 237 (current version at 5 U.S.C. [section][section] 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000)); see also GUIDEBOOK TO THE FREEDOM OF INFORMATION AND PRIVACY ACTS 9 (Robert F. Bouchard & Justin D. Franklin eds. 1980) [hereinafter GUIDEBOOK].

(5.) See H.R. REP. NO. 104-795 at 7 (1996), available at http://www.gwu.edu/~nsarchiv/nsa/foialeghistory/104_cong_reports_efoia.pdf. The Administrative Procedure Act "directed department heads to prescribe regulations for the custody, use, and preservation of department records, papers and property." Id.

(6.) Id.

(7.) See GIDIERE, supra note 1, at 150.

(8.) Id.

(9.) See 112 CONG. REC. 13640, 13641, 13647 (1966).

(10.) 112 CONG. REC. 13642 (1966).

(11.) GUIDEBOOK, supra note 4, at 9.

(12.) 112 CONG. REC. 13640, 13642 (1966) (Statement of Rep. Moss).

(13.) See The Reporters Committee for Freedom of the Press, How to Use the Federal FOI Act, Introduction (2004), http://www.rcfp.org/foiact/ guide_a.html. A New York Daily News reporter used FOIA requests to report on differences between official statements and records relating to contamination following the Sept. 11 attacks on the World Trade Center; the Dayton Daily News used FOIA requests to report on dangers to Peace Corps volunteers; the Public Citizen Health Research Group used FOIA requests to uncover information relating to workers who were placed at environmental risks to their health without being notified. Id.

(14.) Press Release, Office of the White House Press Secretary, Statement by the President Upon Signing S. 1160, (July 4, 1966), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB194/Document%2031.pdf [hereinafter Statement by President Johnson] (last visited Mar. 8, 2007). Remarks by members of Congress indicate that President Johnson opposed FOIA. See 112 Cong. Rec. 13640, 13641 (1966). See also 112 CONG. REC. 13642.

(15.) 5 U.S.C. [section] 552(a)(1)-(2) (2000). Such records include final opinions, organizational descriptions, rules of procedure, policy statements and staff manuals. Id.

(16.) H.R. REP. No. 104-795, at 6 (1996), available at http://www.gwu.edu/ ~nsarchiv/nsa/foialeghistory/104_cong_reports_efoia.pdf (last visited Mar. 8, 2007).

(17.) NATIONAL SECURITY ARCHIVES, FOLLOW A REQUEST THROUGH THE FOIA PROCESS, http://www.gwu.edu/~nsarchiv/nsa/foia/foia_flowchart.pdf (last visited Mar. 8, 2007) [hereinafter FOLLOW A REQUEST].

(18.) Id.

(19.) 5 U.S.C. [section] 552(a)(6)(A)(i) (2000).

(20.) Id. [section] 552(a)(6)(B)(i).

(21.) Id. [section] 552 (a)(6)(B)(iii).

(22.) See FOLLOW A REQUEST, supra note 17; see also; Statement by President Johnson, supra note 14.

(23.) FOLLOW A REQUEST, supra note 17.

(24.) Id.

(25.) See id. See also 5 U.S.C. [section] 552(a)(4)(B).

(26.) [section] 552(a)(4)(B).

(27.) GIDIERE, supra note 1, at 309 (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984), Wilbur v. Cent. Intelligence Agency, 353 F.3d 675, 677 (D.C. Cir. 1990)).

(28.) GIDIERE, supra note 1, at 310.

(29.) [section] 552(a)(4)(B).

(30.) Id.

(31.) [section] 552(a)(4)(E).

(32.) GUIDEBOOK, supra note 4, at 3. GIDIERE, supra note 1, at 2.

(33.) See supra text accompanying note 9.

(34.) S. 849, 110th Cong. (as passed by Senate, Aug. 3, 2007). See discussion infra Part IV.C.

(35.) S. 849, 110th Cong.

(36.) GUIDEBOOK, supra note 4, at 9.

(37.) See NATIONAL SECURITY ARCHIVE, VETO BATTLE 30 YEARS AGO SET FREEDOM OF INFORMATION NORMS (2004), http://www.gwu.edu/~nsarchiv/ NSAEBB/NSAEBB142/index.htm (last visited Mar. 8, 2007) [hereinafter VETO BATTLE].

(38.) Id.

(39.) Id. It should be noted that as a Congressman from Illinois, Rumsfeld supported passage of the Freedom of Information Act. See 112 Cong. Rec. 13,653 (1966).

(40.) Id. VETO BATTLE, supra note 37.

(41.) See discussion infra Part II.B.

(42.) 5 U.S.C. [section] 552(a).

(43.) [section] 552(d).

(44.) 112 CONG. REG. 13,651 (1966) (quoting House Approval Seen on Right-To-Know Bill, L.A. TIMES, June 12, 1966).

(45.) Electronic Freedom of Information Act Amendments, H.R. 3802, 104th Cong. (1996).

(46.) 142 CONG. REC. H10,447, H10,449 (daily ed. Sept. 17, 1996) (Statement of Rep. Horn).

(47.) See H.R. REP. NO. 104-795, at 11 (1996), available at http://www.gwu.edu/~nsarchiv/nsa/foialeghistory/104_cong_reports_efoia.pdf (last visited Mar. 8, 2007).

(48.) See H.R. 3802, 104th Cong. (1996).

(49.) Statement by Pres. William J. Clinton, 1996 U.S.C.C.A.N. 3478, available at http://www.gwu.edu/~nsarchiv/nsa/foia/presidentstmt.pdf (last visited Mar. 8, 2007).

(50.) Id.

(51.) H.R. REP. No. 104-795, supra note 47, at 11.

(52.) Id. at 2.

(53.) Id. at 5.

(54.) Id.

(55.) H.R. 3802, 104th Cong., supra note 48, [section] 3.

(56.) Id. [section] 4.

(57.) Id.

(58.) H.R. 3802, 104th Cong., supra note 48, [section] 5 (1996).

(59.) See id. [section] 10.

(60.) H.R. REP. No. 104-795, supra note 47, [section] 10.

(61.) Id.

(62.) See H.R. 3802, 104th Cong., [section] 7 (1996).

(63.) H.R. REP. NO. 104-795, supra note 47, at [section] 7.

(64.) H.R. 3802, 104th Cong. [section] 7 (1996).

(65.) Id.

(66.) Id. [section] 8.

(67.) Id.

(68.) GIDIERE, supra note 1, at 2.

(69.) David MacDonald, Note and Comment, The Electronic Freedom of Information Act Amendments: A Minor Upgrade to Public Access Law, 23 RUTGERS COMPUTER & TECH. L.J. 357, 357 (1997).

(70.) Id. at 380.

(71.) Martin E. Halstuk, Speed Bumps on the Information Superhighway: A Study of Federal Agency Compliance with the Electronic Freedom of Information Act of 1996, 5 COMM. L. & POL'Y 423, 424 (2000).

(72.) Id. at 465-66.

(73.) 44 U.S.C. [section][section] 3601-06 (Supp. IV 2005).

(74.) Id.

(75.) Id. [section] 3602.

(76.) Pub. L. No. 107-347, [section] 2(a)(2), 116 Stat. 2899 (2002).

(77.) Treasury and General Government Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554, 114 Stat. 2763 (2001).

(78.) Id.

(79.) CONGRESSIONAL RESEARCH SERVICE, THE INFORMATION QUALITY ACT: OMB's GUIDANCE AND INITIAL IMPLEMENTATION 2, 4 (2004), available at http://www.ombwatch.org/info/dataquality/RL32532_CRS_DQA.pdf.

(80.) 44 U.S.C. [section][section] 3501-21 (Supp. IV 2005).

(81.) Id. [section] 3504(d)(2).

(82.) 153 CONG. REC. S10986 (Aug. 3, 2007).

(83.) 153 CONG. REC. S10990 (Aug. 3, 2007).

(84.) Id.

(85.) 153 CONG. REC. S10991 (Aug. 3, 2007).

(86.) Exec. Order No. 13,166, 65 Fed. Reg. 50121 (Aug. 16, 2000).

(87.) Exec. Order No. 13,392, 70 Fed. Reg. 75373 (Dec. 19, 2005) (directing agencies to appoint a chief FOIA officer). While praising Executive Order No. 13,392 for "raising the profile of the FOIA backlog problem within agencies," the National Security Archive has found that "its impact on improving FOIA processing and reducing backlogs government-wide has so far proved negligible." 40 YEARS OF FOIA, 20 YEARS OF DELAY: OLDEST PENDING FOIA REQUESTS DATE BACK TO THE 1980s, NATIONAL SECURITY ARCHIVE, July 2, 2007, at 6, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB224/ten_oldest_report.pdf. [herinafter 40 YEARS or FOIA]. The order provides "no mandates or enforcement mechanisms," and 41 percent of agencies have failed to meet the order's milestones. Id.

(88.) Access to documents related to national security merits its own discussion outside the scope of this note. See Exec. Order No. 13,292, 68 Fed. Reg. 15315 (Mar. 28, 2003) (making records classifiable if they fall under certain categories relating to national security).

(89.) The Reporters Committee for Freedom of the Press, How to Use the Federal FOI Act, A Brief Overview of How the Act Works (2004), available at http://www.rcfp.org/foiact/guide_b.html.

(90.) Id.

(91.) 484 F.2d 820 (D.C. Cir. 1973).

(92.) Id. at 822.

(93.) Id. at 822-23.

(94.) Id. at 828.

(95.) Id. at 826.

(96.) Id. (emphasis in original).

(97.) Id.

(98.) Id. at 827.

(99.) Id.

(100.) Id. at 828.

(101.) 330 F.3d 1191 (9th Cir. 2003).

(102.) Id. at 1192-93 (interpreting 5 U.S.C. [section] 552(a)(3)(B) (2000)).

(103.) 32 C.F.R. [section] 286.4(g)(2) (2006).

(104.) TPS, 330 F.3d at 1193.

(105.) Id. Zipped files are compressed to take up less space than ordinary files. See id. at 1193, n.1.

(106.) Id. at 1193.

(107.) Id. at 1191, 1194.

(108.) See id. at 1191, 1197.

(109.) See TPS, 330 F.3d at 1197.

(110.) Id.

(111.) Id. at 1195.

(112.) Sample v. Bureau of Prisons, 466 F.3d 1086, 1088 (D.C. Cir. 2006).

(113.) TPS, 330 F.3d. at 1194, n.5.

(114.) Id. at 1194.

(115.) Id.

(116.) Id.

(117.) Id. at 1194, n.5 (noting that Second, Sixth, Eighth, Tenth, and D.C. Circuits apply a de novo standard of review).

(118.) 547 F.2d 605, 606 (D.C. Cir. 1976).

(119.) 5 U.S.C. [section] 552(a)(6)(A)(i).

(120.) [section] 552 (a)(6)(A)(i)-(ii).

(121.) [section] 552 (a)(6)(C)(i).

(122.) 547 F.2d at 612.

(123.) Id. at 608.

(124.) Id. at 616.

(125.) 5 U.S.C. [section] 552 (a)(6)(C)(i).

(126.) [section] 552 (a)(6)(C)(ii).

(127.) [section] 552(a)(6)(C)(iii).

(128.) No. 02-63, 2005 U.S. Dist. LEXIS 18876 (D.D.C. Aug. 31, 2005).

(129.) Id. at *1.

(130.) Id.

(131.) Id. at *7.

(132.) Id. at *19.

(133.) Id. at *9 (citing H.R. Rep. 104-795 at 24 (1996)).

(134.) Id. at* 12.

(135.) Id. at* 4.

(136.) Id.

(137.) Id. at* 12.

(138.) ld. at* 13.

(139.) See supra text accompanying note 35.

(140.) 880 F.2d 1381 (D.C. Cir. 1989), cert. denied, 494 U.S. 1029 (1990).

(141.) Id. at 1387.

(142.) Pub. L. No. 99-570, 100 Stat. 3207-48 (1986) (codified as amendment to 5 U.S.C [section] 552 (2006)).

(143.) Nat'l Security Archive, 880 F.2d at 1382.

(144.) Id. at 1386.

(145.) Id. (quoting 132 Cong. Rec. S14298 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy)).

(146.) The Electronic Freedom of Information Act Amendments of 1996, H.R. 3802, 104th Cong. [section] 2(a)(6).

(147.) GAO UPDATE ON IMPLEMENTATION OF THE 1996 ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS REPORT TO CONGRESSIONAL REQUESTERS, at 1 (Aug. 30, 2002), available at http://www.gao.gov/new.items/d02493.pdf [hereinafter GAO Update].

(148.) Id. at 2.

(149.) Id. at 3.

(150.) Id.

(151.) Id.

(152.) Id. at 13.

(153.) Id.

(154.) Id. at 22.

(155.) Id.

(156.) GAO Testimony on Implementation of the Freedom of Information Act; Hearing before the Subcomm. on Gov't Mgt., Finance & Accountability, Comm. on Gov't Reform, House of Representatives (2005), available at http://www.gao.gov/new.items/d05648t.pdf.

(157.) Id. at 2.

(158.) Id.

(159.) Id. at 22.

(160.) GAO hearing on the Preliminary Analysis of Processing Trends Shows Importance of Improvement Plans; Testimony before the Subcomm. on Gov't Mgt., Finance, & Accountability, Comm. on Gov't Reform, H. of Rep., (2006), available at http://www.gao.gov/new.items/d061022t.pdf.

(161.) Id at 3.

(162.) Id.

(163.) Id.

(164.) Id.

(165.) Freedom of Information Act: Hearing before the Subcomm. of Gov't Mgt. Finance & Accountability of the H. Comm. on Government Reform, 109th Cong. (2006) (statement of Patrice McDermott, Director, OpenTheGovernment.org) [hereinafter McDermott Testimony].

(166.) Id.

(167.) Id. (emphasis omitted).

(168.) See id.

(169.) Id.

(170.) Id.

(171.) See Kipp Lanham, Response to FOIA Requests Varies Significantly, THE HILL, Nov. 17, 2005, at 14.

(172.) FILE NOT FOUND, supra note 3; 40 YEARS OF FOIA, supra note 87.

(173.) FILE NOT FOUND, supra note 3, at 1.

(174.) 40 YEARS OF FOIA, supra note 87, at 4.

(175.) Id. at 9.

(176.) H.R. 867, 109th Cong. (2005); S. 394, 109th Cong. (2005).

(177.) Judiciary, Panel Approves Cornyn-Leahy OPEN Government Bill, STATES NEWS SVC., Sept. 21, 2006.

(178.) Id.

(179.) House Panel Approves FOIA Reform Bill, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Sept. 29, 2006, http://www.rcfp.org/news/2006/ 0929-foi-housep.html.

(180.) SGI Approves House Panel Vote to Approve OPEN Government Act, SUNSHINE IN GOVERNMENT INITIATIVE Sept. 27, 2006, http://www.sunshineingovernment.org/plattsvote.pdf

(181.) VETO BATTLE, supra note 37.

(182.) 153 CONG REC. S10,988 (daily ed. Aug. 3, 2007); See also Nat'l Security Archive, 880 F.2d at 1382.

(183.) 153 CONG. REC. S10,988 (daily ed. Aug. 3, 2007).

(184.) Id.

(185.) H.R. 1620, 109th Cong. (2005); S. 589 109th Cong. (2005).

(186.) H.R. 1620(d)(1).

(187.) H.R. 1620, 2331, 109th Cong. (2005).

(188.) Id. [section] 4.

(189.) Id. [section] 7.

(190.) Id. [section] 5.

(191.) Id. [section] 9.

(192.) See GIDIERE, supra note 1, at 213-15 (explaining the agency's response to FOIA requests as accounting for several considerations, including whether the proper records could be found, whether exempt and non-exempt information can be separated, and whether information must be redacted).

(193.) Although there is no standardized requirement that agencies categorize information in such a way, some agencies have categorized documents on their own. For example, the Federal Energy Regulatory Commission separates documents into four classes ranging from public to privileged. See id. at 372. However, such classifications are not readily available on the FERC website for those who would submit a FOIA request. Id.

(194.) Congress has attempted to address this by requiring greater communication in limited circumstances. See supra text accompanying note 126. In addition, the National Security Agency Report found that in 2006, there were twenty five agencies with FOIA backlogs "pending consultation with other agencies." 40 YEARS OF FOIA, supra note 87, at 7. One such request has been pending for eighteen years. Id.

(195.) Agencies often "wait out the requester" by refusing to turn over information until just before a judge rules that such information should be made public. This deters requesters from seeking information while allowing agencies to avoid the fee-shifting provision of FOIA. See CONG. REC. S10990 (daily ed. Aug. 3, 2007) (remarks of Sen. Cronyn).

(196.) 2005 U.S. Dist. Lexis 18876, at *10-11.

(197.) McDermott Testimony, supra note 165. See also 40 YEARS OF FOIA, supra note 87, at 5 (finding that "mandatory agency reports to Congress about their range of pending requests failed to disclose some of the oldest requests").

(198.) Id. See McDermott Testimony, supra note 165, at 7.

(199.) See supra text accompanying note 168 & 169.

(200.) The GAO stated that cost estimates of FOIA-related initiatives by the Office of Management and Budget were unreliable: Accurate cost information was also generally lacking. The updated information we obtained from project managers in September 2002 on estimated costs revealed significant changes--changes of more than 30 percent--for about half of the initiatives. GAO Testimony on Electronic Government: Hearing Before the House Subcomm, on Tech., Info. Policy, Intergov'tal Relations & the Census, of the Comm. on Gov't Reform, 108th Cong., 11 (2003).

(201.) Open Government Act, H.R. 867 [section] 11 109th Cong. (2005) [hereinafter Open Government Act].

(202.) Id.

(203.) See Office of the Information Commissioner of Canada, available at http://www.infocom.gc.ca/menu-e.asp (last visited Nov. 9, 2007).

(204.) Id.

(205.) THE INFORMATION COMMISSIONER OF CANADA, ANNUAL REPORT INFORMATION COMMISSIONER, at 9 (June 2006), http://www.infocom.gc.ca/ reports/pdf/oic05_06E.PDF.

(206.) Id. at 10.

(207.) Id. at 6.

(208.) See Information Commissioner's Office, http://www.ico.gov.uk/ (last visited Mar. 8, 2007).

(209.) INFORMATION COMMISSIONER'S OFFICE, FREEDOM OF INFORMATION FACT SHEET, at 2, http://www.ico.gov.uk/upload/documents/library/ freedom_of_information/introductory/freedom_of_information_factsheet.pdf (last visited Mar. 8, 2007).

(210.) Id.

(211.) Id.

(212.) Id. at 1.

(213.) INFO. COMM'R OFFICE, FREEDOM OF INFORMATION: ONE YEAR ON, at 10 (Jan. 2006), http://www.ico.gov.uk/upload/documents/library/corporate/ research_and_reports/foi_one_year_on_research_findings.pdf.

(214.) INFO. COMM'R. OFFICE, FREEDOM OF INFORMATION: ICO PROGRESS REPORT, at 30 (Oct. 2006), available at http://www.ico.gov.uk/ upload/documents/library/corporate/research_and_reports/ foi_progress_report_oct_07.pdf.

(215.) Id. at 31.

(216.) See supra text accompanying note 176.

(217.) Open Government Act, supra note 217, at [section] 11.

Robert Ratish, J.D. Candidate, May 2008, Rutgers School of Law--Newark; B.A. Journalism and Politics, New York University. The author would like to thank the staff of the Rutgers Computer and Technology Law Journal, and Dean Frances Bouchoux for her guidance. The author would also like to thank his friends and family, especially his wife Patricia for her love and support, and his daughter Lillian for bringing a constant source of happiness and pride.