The House Subcommittee on Information, Census and National Archives of the Government Oversight and Reform Committee held a hearing on the Freedom of Information Act (FOIA) Feb. 14. The hearing served as an update on the implementation of Executive Order 13392, which requires agencies to develop and implement FOIA improvement plans, and as an opportunity to air the virtues and vices of FOIA and possible legislative solutions to improve public access to information.

Rep. William Lacy Clay (D-MO), chairman of the subcommittee, stated that he was committed to reforming FOIA to create greater public access to government information. "I am deeply concerned that this administration appears to be shielding information that ought to be accessible to the public," said Clay.

In the 109th Congress, the House and Senate seriously considered legislation to speed up FOIA and relieve agency backlogs. Two bills addressing FOIA, sponsored by Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT), were well-received in both the House and the Senate, though neither received a vote on the floor. The Openness Promotes Effectiveness in our National (OPEN) Government Act and the Faster FOIA Act contained provisions to allow the public to recoup legal costs for challenging FOIA denials in court; mediate disputes between those requestors and federal agencies; and establish a commission to study FOIA backlog problems and recommend improvements.

In July 2006, federal agencies released their FOIA Improvement Plans, as required by Executive Order 13392. While the improvement plans met with considerable criticism, the executive order is still widely viewed as a significant acknowledgement of the importance of FOIA.

In testimony before the House subcommittee, the Government Accountability Office stated that, "Despite increasing the numbers of requests processed, many agencies did not keep pace with the volume of requests that they received. As a result, the number of pending requests carried over from year to year has been steadily increasing; further, the rate of increase is growing."

In addition to FOIA backlogs, the hearing also stressed the significance of the John Ashcroft FOIA memorandum issued soon after 9/11 that encouraged agencies to consider the homeland security implications of released information and to restrict disclosure whenever legally possible. Under this new operating procedure, "secrecy is the default response," stated Anthony Romero, executive director of the American Civil Liberties Union, in testimony before the subcommittee.

To remedy the backlogs created by FOIA and reverse the culture of secrecy, Romero stated, "The first order of business should be legislative action to rescind the Ashcroft memo and restore the original purpose of FOIA by emphasizing the presumption toward disclosure."

Additionally, in his testimony, Clark Hoyt of the Sunshine in Government Initiative called for the creation of a FOIA ombudsman, "a champion for FOIA training and compliance, a place where individuals seeking to exercise their rights under FOIA can go for help short of filing a lawsuit."

Meredith Fuchs of the National Security Archive stated in her testimony, "Addressing delays will require a combination of (1) better reporting, so problems are identified before a decade elapses; (2) better tracking of requests by agencies, so that problems in the system can be fixed; (3) better leadership, including from the Chief FOIA officers appointed as a result of Executive Order 13,392; (4) more resources, including perhaps requiring agencies to fix FOIA budgets as a percentage of their growing public affairs' budgets; and (5) penalties for delay, including perhaps disallowing agencies from collecting any processing or duplication fees if they cannot meet the 20-day deadline."

Clay stated that the bills introduced in the 109th Congress would serve as starting points for a new FOIA reform bill and that he is looking for ways to improve upon them.