President Bush issued Executive Order 13392 on Dec. 14 to help improve the processing of requests made under the Freedom of Information Act (FOIA). Open government advocates, however, argue the order is no substitute for legislation in the Senate that would solve many of the underlying problems with FOIA. Executive Order 13392 requires that each federal agency:

• create a high level chief FOIA officer in each agency;
• conduct an internal assessment of FOIA service problems and develop a work plan for making improvements;
• establish a FOIA Requester Service Center and a FOIA Public Liaison to work with requestors.

Critics are quick to point out, however, that FOIA officers are already in place in each agency, and it is unclear how the new positions differ from these existing agency FOIA positions. According to a Coalition of Journalists for Open Government analysis, "Best case, these changes will lead to more efficient operations and more posting of routine documents on the Internet... For requesters on the cutting edge of departmental discretion, there's not likely to be much change, although it may now be easier to know that you're a victim of deliberate delay, not inefficiency." One of FOIA's main problems stems from an October 2001 guidance memo by then-Attorney General John Ashcroft, encouraging government agencies, where defensible, to deny FOIA requests. In his own words, "[w]hen you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis..." An Executive Order by President Bush or instructions to his Attorney General to change the administration's guidance from the presumption of withholding information to the presumption of disclosure would have gone farther to improving the FOIA system than the new Executive Order. Other problems with the current FOIA system include increasing FOIA backlogs; excessive search and copying fees; under-funding of FOIA activities; and the increased need to file lawsuits to pry loose information from reluctant agencies. While the order leaves many of these problems unaddressed, Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT) have proposed two bills--Faster FOIA Act (S. 589) and OPEN Government Act (S. 394)--that would improve the FOIA system. The OPEN Government Act would:

• allow the public to recoup legal costs from the federal government for improperly withholding documents;
• expand the list of those eligible for fee waivers to include many nonprofits and blog writers;
• establish a tracking system for requests, and require agencies to report on their 10 oldest pending requests, fee waivers approved and denied, and information on how FOIA requests are handled; and
• extend FOIA's reach to information held by federal contractors.

The Faster FOIA Act would require Congress to explicitly state its intention within any bill that would exempt information from disclosure under FOIA. Both bills have five co-sponsors in the Senate. You can send your elected representatives a customizable email in support of the OPEN Government Act by visiting OMB Watch's Action Center.