Attorney General Alberto Gonzales issued a report last week to President Bush on the implementation of Executive Order 13392, which required agencies to establish Chief Freedom of Information Act (FOIA) Officers and develop FOIA improvement plans to reduce backlogs and increase public access to highly sought-after government information. The report showers praise on agency improvement plans, in sharp contrast to an OpenTheGovernment.org review that found agencies failed to address important FOIA improvement areas.

Claiming E.O. 13392 "should prove to be the most significant development in [FOIA's] history," the report finds that agencies have implemented the executive order "in a vigorous manner fully commensurate with the importance of this unprecedented Presidential initiative. Overall, they have followed the extensive implementation guidance that has been provided to them and where necessary have demonstrated a strong commitment to promptly making adjustments to their initial planning efforts as required."

The attorney general identifies "significant areas of FOIA administration improvement have been firmly embraced by the agencies." The report states that agency plans demonstrate a commitment to, among other things, implement technologies to improve FOIA processing; proactively disclose information; treat requesters courteously and professionally; improve tracking of FOIA requests; and decrease backlogs of FOIA requests.

This positive overview of agency FOIA improvement plans sharply contrasts with a July 4 report issued by OpenTheGovernment.org. The report found after reviewing a number of FOIA improvement plans that "many of the improvement areas were either not addressed or rated as poorly addressed." The Securities and Exchange Commission and the Office of Management and Budget plans received the worst ratings, failing to address 24 and 22 of the 27 identified improvement areas, respectively. Generally, agencies produced plans that focused on a narrow set of problems and only explored short-term solutions with little effort spent considering larger issues or longer-term improvements.

The Government Accountability Office (GAO) issued its own report on FOIA earlier in the year finding that, "Despite processing more requests, agencies have not kept up with the increase in requests being made." Increasing backlogs of unprocessed requests are cited as a major problem by GAO, which found "the number of pending requests carried over from year to year has been steadily increasing, rising to about 200,000 in fiscal year 2005--43 percent more than in 2002."

The Department of Justice recognized that the subject of timeliness of FOIA responses and backlog reductions was inadequately addressed by some agencies and requested that agencies revise their improvement plans accordingly. The Department of Education, Federal Energy Regulatory Commission, National Aeronautics and Space Administration, National Archives and Records Administration, and Securities and Exchange Commission have completed the suggested revisions. Fourteen additional agencies have committed to revising their improvement plans.

Surprisingly, the Office of Management and Budget's improvement plan, which OpenTheGovernment.org found to be the second worst of all federal agencies subject to FOIA, was not asked to be revised. The Attorney General also did not address other pressing FOIA improvements, such as requiring responses to FOIA requests be made available on agency websites.

With the failure of E.O. 13392 to adequately address various shortcomings in FOIA procedures, legislative proposals have been introduced to strengthen FOIA and improve public access to government information. Last September, the Senate Judiciary Committee approved the Openness Promotes Effectiveness in Our National (OPEN) Government Act of 2005 (S. 394). The bill, sponsored by Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT), would, among other things, 1) allow the public to recoup legal costs from the federal government for improperly withheld documents; 2) establish a tracking system for requests; and 3) create a system to mediate disputes between those requesting information and federal agencies.

In March 2005, Cornyn and Leahy introduced a second bill, the Faster FOIA Act of 2005, to establish a commission to study backlog problems and possible improvements of agency procedures. Similar bills, the OPEN Government Act (H.R. 867) and Faster FOIA Act (H.R. 1620), have been offered in the House by Reps. Brad Sherman (D-CA) and Lamar Smith (R-TX).