Sunshine Week starts with a new report from the National Security Archive and the Knight Foundation that finds only 49 of 90 agencies have adopted 'concrete steps' to improve their responsiveness to Freedom of Information Act requests. This is incredibly disheartening, though an improvement on the numbers from last year's study that found 13 of 90 agencies following up. The agencies' failure to meet even the administration's low bar is unacceptable. The two 'concerte steps' are simply updating the language in FOIA training documents to presume openness and to assess whether resources for compliance are adequate.

The report stems from Obama's Executive Order that called for greater FOIA openness [link], one of the first official acts he made as President, a follow-up memo from Attorney General Eric Holder detailing the new principles on FOIA [pdf link] and another memo a year later from former Chief of Staff Rahm Emanuel and former Counsel to the President Bob Bauer asking agencies to please take the baby steps previously promised [pdf link].

“At this rate, the president’s first term in office will be over by the time federal agencies do what he asked them to do on his first day in office,” commented Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, which funded the study. “Freedom of information laws exist to help all of us get the information we need for this open society to function. Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws.”

Modeled after the California Sunshine Survey and subsequent state “FOI Audits,” the Archive’s series of Knight Open Government Surveys started in 2002 and use open government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Knight Open Government Surveys led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests.

Among the varying responses from agencies, the most stunning result was the U.S. Postal Service saying it had "no responsive records" and never even received the Emanuel-Bauer memo! Below is a chart of the ratings of each agency:

On Monday, Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive won an important victory for transparency when a D.C. District Court judge upheld their challenges regarding the White House's failure to properly store and recover millions of emails dating from March 2003 through October 2005. Rejecting the government's motion to dismiss the lawsuit, the judge ruled that the Federal Records Act permits a private plaintiff to bring suit to require the administration to notify Congress or ask the attorney general to initiate action to recover destroyed or missing e-mail records, according to the Archive.

In September 2007, both groups filed separate suits seeking the recovery and preservation of more than 5 million e-mails under the Federal Records Act and the Administrative Procedure Act. Later that year, the judge consolidated the cases. The National Security Archive has compiled a nifty chronology of the case.

The judge held that the two groups have the right to sue to force the administration to restore the deleted emails before they become unrecoverable, that the court has the authority to review the adequacy of the White House's recordkeeping practices, and the administration has a duty to prevent the destruction of federal records, according to wallstreet.online.