HOW HE SEES IT Without a watchdog, FOIA lacks teeth
By ALASDAIR ROBERTS
The Freedom of Information Act, signed into law by President Lyndon Johnson in July 1966, will turn 40 next year -- but its midlife crisis is already well under way. The law hasn't achieved its goal of overturning the culture of secrecy in the federal bureaucracy. Requests for information are too often met with interminable delays, followed by broad denials.
In fact, it was always unrealistic to expect that one law would overturn a long-entrenched bureaucratic culture. One of the FOIA's critical defects is its failure to anticipate chronic resistance to the law, by establishing an independent watchdog to monitor compliance and referee complaints about the denial of information.
Other countries -- including Mexico, the United Kingdom, Canada, Ireland and New Zealand -- have learned from the United States' mistake. They have all appointed independent ombudsmen to oversee their FOI laws. There are now so many information watchdogs that they have a regular international conference; the last was hosted by Mexico's ombudsmen in February.
These watchdogs perform four critical functions. First, they provide an inexpensive way of obtaining justice when agencies ignore a FOIA request or refuse information. You don't need a lawyer or deep pockets to make an appeal to Canada's Information Commissioner. His staff successfully mediates almost all disputes in a few months, at no charge for the complainant. (Other ombudsmen charge modest appeal fees.) In the United States, you can ask an agency to reconsider its decision -- but it's unlikely to change its mind. Then it's time for a costly and complicated trip to federal court.
Watchdogs also perform the important task of overseeing the FOI system as a whole. When Canada's system suffered from government-wide problems of delay in the 1990s, the Information Commissioner undertook statistical analyses to document the problem, and used his investigative powers to probe management practices in the worst agencies. Last month, the retiring commissioner reported a "dramatic improvement" in response time, and a sharp drop in complaints about delay.
Watchdogs wield carrots as well as sticks. In his first report on the U.K.'s new FOIA, issued in early July, Information Commissioner Richard Thomas details his office's campaign undertaken to help officials prepare for the law. His staff also provided detailed advice to government on how to release information "pro-actively," without the need for a FOIA request.
Finally, watchdogs are advocates for the principle of openness. When the Irish government hiked FOI fees in 2003, Information Commissioner Emily O'Reilly cried foul, demonstrating that the increase had caused the number of requests to drop by 50 percent. In the Canadian provinces of Ontario and British Columbia, commissioners have probed patterns of political interference in the handling of FOI requests. Mexico's five-person commission has actively promoted public awareness of information rights, and established a remarkable web-based system nicknamed SISI for sending FOI requests to any federal agency.
The watchdog model isn't perfect. Secretive policy-makers sometimes try to appoint sympathetic commissioners or slash their budgets. Officials can also overload watchdogs by misbehaving badly and often. But the model helps to establish an important principle: The right to information isn't just for groups that have money, expertise, and inside-the-Beltway knowledge.
The Open Government Act of 2005, introduced by Sens. John Cornyn and Patrick Leahy last February, would establish a new independent referee -- the Office of Government Information Services -- that would perform some of the work done by watchdogs elsewhere. It's a good idea, now tested in many other countries. Think of it as a 40th birthday present from the kids.
X Alasdair Roberts is an associate professor in the Campbell Public Affairs Institute, Maxwell School of Syracuse University. Distributed by Knight Ridder/Tribune Information Services.