Saying the Freedom of Information Act "has become a tool of secrecy, not transparency," University of Arizona School of Journalism director David Cuillier urged Congress on Tuesday to consider five steps in making the 1966 law stronger.
"Agencies are gaming the system. Critical information is hidden from the public, and journalists are frustrated because they see it firsthand. They see information not getting to their communities … information that could shed light on unsafe drinking water, on corruption, on wasteful spending, and I think we are at a tipping point, and we have to deal with this," Cuillier said, testifying before the Senate Judiciary Committee in Washington, D.C.
Cuillier and others praised the committee and recent amendments signed into law on the eve of FOIA's 50th anniversary — including the presumption that government records are public unless disclosure would cause foreseeable harm, a stronger FOIA ombudsman office and streamlined online requests.
But the UA associate professor, who teaches and researches access to public records, said the law still has problems and outlined five actions Congress can take to "turn the tide" and "set us back on track to the culture of openness and accountability."
Committee chair Sen. Charles Grassley, R-Iowa, invited Cuillier and three other public records experts to speak on the panel titled "FOIA at Fifty: Has the Sunshine Law’s Promise Been Fulfilled?"
Cuillier's testimony centered on five key issues:
Require FOIA training of all federal employees.
"I often hear complaints that a lot of government employees don't understand the law or don’t see the point of it," Cuillier said.
Sen. Al Franken, D-Minn., a committee member, told Cuillier it would be "a waste of effort to train every federal employee in FOIA." But Cuillier said there are states that require all government workers to go through public records training. "There are models for this. … I don't think it's an insurmountable task," he said.
Add enforcement mechanisms.
"The law has no teeth," Cuillier said. "There are no repercussions if someone violates FOIA, except for hiring a lawyer and suing, and that is hard for citizens. … Some state record laws provide penalties and fines for non-compliance. I think that should be instituted at the federal level as well."
Grassley asked Cuillier if "stronger sanctions actually will work."
Cuillier responded: "I know they work. When we see states with strong enforcement provisions, we see compliance. Washington state, Florida and Texas are states where if you don't comply as an agency, not only could you pay attorney fees for plaintiffs who prevail, there are also punitive damages. … If we go speeding down the interstate, there are penalties for breaking the law. The same should apply to FOIA."
Streamline the system.
Commercial requesters suck up the bulk of FOIA requests, Cuillier said, echoing fellow panel member Margaret Kwoka of the University of Denver's Sturm College of Law.
"That creates backlogs subsidized by taxpayers in the millions and making it harder for people trying to get information for the public good," he said. Commercial interests should be assessed higher fees, he suggested.
Rein in statutory exemptions.
"The privacy exemption has been twisted out of recognition … and we need to curtail these secrecy tactics," Cuillier said.
Invest in electronic proactive disclosure.
Cuillier, along with fellow panel member Rick Blum of the Sunshine in Government Initiative, said more staff and resources are needed to create a single FOIA online portal and to develop digital systems that automatically post documents easy for the average person to find and retrieve.
Also in his testimony, Cuillier addressed the nation's low ranking in helping citizens access information when compared to other countries with similar FOIA laws. The U.S. ranks 46th among 105 countries, as reported by the Global Right to Information Rating.
Franken asked Cuillier to "explain to me how you would say Russia's freedom of information act is stronger than the U.S. act."
Cuillier answered: "Right, it strikes everyone as odd. This is the text of their laws. It doesn't necessarily mean there's more transparency in Russia … but you have to look at the methodology — whether the laws are in the constitution, whether there are enforcement provisions, whether the turnaround for information is five days instead of 20."
With FOIA, Cuillier said, "on average people are told they can’t have information 77 percent of the time." He said the Obama administration is processing more FOIA requests and doing it more quickly, but "what they are doing is stamping 'no' faster."
Cuillier, past president of the Society of Professional Journalists, also addressed the concerns of journalists. In December, he joined a delegation of journalists in a meeting with the White House press secretary to urge more transparency from federal executive agencies.
Speaking in testimony, Cuillier said "we have yet to hear or see results" that align with the transparency promises made years ago.
Sen. Amy Klobuchar, D-Minn., a committee member whose father worked for The Associated Press and the Minneapolis Star-Tribune, asked Cuillier which additional public records reforms could help journalists.
"One, we have to tackle FERPA, the Family Educational Rights Privacy Act," Cuillier said of the law that protects the privacy of student education records. "It's not FOIA, per se, but it's probably more of a problem for most journalists than FOIA."
Grassley wrapped up the panel by recounting what Cuillier told the Senate Judiciary Committee in March 2014, namely that "the importance of developing a culture of openness that transcends legislation and whims of changing presidents."
Grassley asked Cuillier: "How can we best ensure a culture of openness regardless of amendments to FOIA or directives from the White House?"
Cullier said: "It does start from the top, so we need leadership that insists on transparency and doesn't just say it, but follows through. The federal government is a big ship, and you wonder if one person can turn it around. Secrecy is infused in a bureaucracy; it is its natural state and tendency. These things that we talked about today can help, and I certainly think it’s important for Congress and your committee to keep focused on this."
Cuillier said also acknowledged the "eternal battle between transparency and secrecy," noting that the issue will not soon disappear. "So we just have to keep at it," he said.