March 10, 2014

A FOIA Report Card That Is Anything But Fair and Accurate

By Anne Weismann

FOIA StacksEvery year around this time, with Sunshine Week just around the corner, groups in the FOIA access community start publishing report cards grading executive branch agencies on their FOIA performance during the past year.  Some are enormously helpful and informative, such as that done last year by the National Security Archive outlining those agencies that have outdated or non-complying FOIA regulations.  Others, like the just released report by the Center for Effective Government (CEG), "Making the Grade: Access to Information Scorecard 2014", are confounding if not erroneous. 

The CEG report rates agencies on three factors: (1) how the agency actually processes requests for information; (2) how the agency establishes rules for information access; and (3) whether the agency has created “user-friendly websites.”  Therein lies the problem, as the most user-friendly website in the world cannot compensate for an agency — like the Department of Justice — that falls woefully behind in its actual processing of FOIA requests.  As even CEG recognizes, DOJ processes only 69% of its requests, earning it a D+ under CEG’s rating scale.  Yet CEG rates DOJ second overall, a score inflated in significant part by the apparent beauty of its website.

Further undermining CEG’s methodology is its reliance on faulty metrics engineered by DOJ’s Office of Information Policy to paint the rosiest picture possible of agency compliance with the FOIA.  Even accepting those metrics at face value, they reveal nothing about the quality of an agency’s responses.  As one of the most frequent FOIA requesters and litigators, CREW knows first hand just how deceptive even DOJ’s 69% processing rate is, as it says nothing about the countless instances in which DOJ refuses to release any documents until forced to do so by a court.  In the past year alone CREW has received order after order in cases brought against DOJ faulting the agency for its responses to CREW’s requests. 

On the rules front CEG’s A- grading of DOJ also falls wide of the mark.  DOJ has published proposed FOIA regulations that are so bad a group of FOIA requesters, including a representative from CEG, met with the Office of Management and Budget urging that the regulations not go forward.  In addition, the Electronic Privacy Information Center submitted to DOJ 22 pages of comments outlining how far the proposed regulations stray from the FOIA and its underlying purpose [link]  CEG’s conclusion DOJ deserves high marks in this category cannot be squared with the reality of the situation.

It is appropriate and fair to recognize agencies that are fulfilling their obligations under the FOIA.  But CEG’s latest report does a huge disservice to all requesters by falsely inflating DOJ’s performance, and ignoring the myriad ways in which that agency — a supposed leader on the FOIA front — ignores, if not flouts, its obligations under the statute.

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