March 16, 2010

Slow government action under Freedom of Information Act = a less robust democracy

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I was driving the other day when my celphone started vibrating. I pulled it from my pocket. It was a call from a northern Virginia number I didn't recognize. I dutifully pulled over and answered. It was the U.S. Environmental Protection Agency calling back about a Freedom of Information Act request — one that I filed nearly three months earlier, back in the first days of winter. Note that spring starts this Saturday. The phone call I took as I sat by the side of the road in my two-seater Honda was the first time I had spoken with an EPA official about the request. The story for which I was gathering information when I filed the request ran Jan. 12.

Now, at the time I filed the request, I was desperate for information about what the EPA had to say about a class of chemicals called polycyclic aromatic hydrocarbons. I was putting together a story on new research that suggests dangerously high concentrations of these PAH chemicals may be coming off parking lots with coal-tar sealants.

Why was I desperate? Because, as I explained yesterday in kicking off this series of Sunshine Week posts, the EPA had simply refused to have a meaningful conversation about what was — and still is — emerging as a major potential threat to public health. (It's also a threat that has not been written about very much, btw. Our story for MSNBC was far and away the highest profile the issue has achieved to date.)

The caller from an EPA northern Virginia office was Crystal Samuels. She wanted to know if I still wanted that information. In her introduction, she was apologetic about the time lapse, telling me:

"I'm sorry. We are very busy."

Now, I do not doubt that Ms. Samuels truly is sorry that the response took so long.  But that doesn't mean that the agency should get a free pass on this. All I was asking for was a document a few pages long that was scheduled to go out from EPA soon anyway. I was just wanted a look at the document so I could see if it would shed any light on my story.

As it turns out, it would not have been a very helpful document, anyway.  Judge for yourself. It's very process-oriented. There's nothing at all sensitive in the document. At the time, though, I didn't know that. I only knew the agency was releasing a document soon that could shed light on the health risks of PAHs. I wanted to tell readers what the agency knew.

I explained to Ms. Samuels that I imagined that by now that document had been posted on the Web. She said it had, and agreed to send me a copy of the document, which had long since been published in the Federal Register (PDF). I explained that as a news reporter, I really need a much faster response, and that this was an extremely simple and easy-to-fill request.  She repeated that she was sorry it took so long, and I could tell she that faces these complaints all the time.

A look at the EPA's latest annual report on how it handles FOIA requests is pretty revealing. Even for what are classified as simple requests — and mine had to qualify; this represents the vast majority of requests EPA receives — it can take a really long time to get information.

That report says that of the 10,098 simple FOIA requests filled in the year ended last September, 1,503 took more than 61 days to fulfill, as did mine. That's 13 percent. In fact, 77 of those requests were fulfilled only after 400 days or more. The median time for responding was 20 days. Average was 37 days.

Recall that Freedom of Information Act says that agencies should usually respond to FOIA requests within 20 days (and I remember when it was 10 days). But in practice, this hardly ever happens, in my experience.

To be fair, the agency has reduced a humongous backlog of some 23,000 unanswered requests in the middle of George W. Bush's two terms to just 332 such requests as of last Sept. 30. That is progress.

But when someone files a request as simple as the one I did, wouldn't it make sense for the agency to respond quickly? It might just make those FOIA-response numbers look better for EPA and — more importantly — get information into the hands of citizens more quickly.

— Robert McClure

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