13 July 2011

United States considering Commission to review process delays in access to information

On 4 July 2011, the United States celebrated the 45th anniversary of the enactment of the Freedom of Information Act. Senator Patrick Leahy used the opportunity to urge the United States House of Representatives to pass the Faster FOIA Act.

The Faster FOIA Act achieved unanimous approval from the Senate in May 2011 and, if passed by the House of Representatives, would establish the Commission on Freedom of Information Act Processing Delays to conduct a study to:
• identify methods that will help reduce delays in processing Freedom of Information Act requests submitted to federal agencies;
• ensure the efficient and equitable administration of the Freedom of Information Act throughout the federal government;
• examine whether the system for charging fees for such requests and granting waivers of such fees needs to be reformed to reduce delays;
• determine why the government's use of the Freedom of Information Act exemptions increased during the 2009 financial year and whether the increase contributed to delays; and
• make recommendations on how the use of exemptions may be limited.

In a statement on 29 June 2011, Senator Leahy indicated that the Department of Justice's Annual FOIA Report for the 2010 financial year revealed that more than 69,000 FOIA requests remain backlogged across the Unites States government. Unacceptable delays of this nature clearly support the need for a Commission such as the Act proposes.

If the Faster FOIA Act is passed, the resulting work of the Commission will provide an interesting example across the globe for the many governments that are marred by slow delivery on their freedom of information obligations.

In South Africa the Promotion of Access to Information Act (the equivalent to the United States Freedom of Information Act) provides public and private bodies with 30 days to respond to requests for information. However, experience of civil society organisations is that such time frames are rarely met. For the 12 months commencing August 2009 the PAIA Civil Society Network, an umbrella body of organisations working to advance the right of access to information, reported that only one fifth of requests made by its members were responded to within the 30 day time period. In SAHA's experience many bodies take six months or more to respond to requests.

Serious time delays are often also experienced in obtaining copies of the information after access has been granted. In one extreme case, SAHA has been waiting 18 months for a copy of a database held by the Department of Justice, access to which was granted by the Minister.

When one considers the often time-bound value of information, the time delays regularly experienced in using PAIA represents, in effect, a denial of the constitutional right of access to information in South Africa.

SAHA will therefore be watching developments in the United States with keen interest and will be closely analysing any recommendations of the proposed Commission, if it is established.