Agencies that prefer to avoid public scrutiny have little incentive to comply with FOIA. An agency can ignore or deny and request and wait for the requester to sue. Assuming the requester has the resources needed to commence litigation, the agency can fight for years to keep its information secret. And if it loses, the only consequence is an order to obey the law.

[B]ecause there are no consequences for missing FOIA deadlines, [Paul] McMasters said few FOIA directors seem to take the legal requirements seriously.

"There is absolutely no incentive for federal government employees to act with any sense of urgency on FOIA requests, and there are every sort of incentive to delay and delay," he said. "Those incentives are a culture of secrecy that has always existed in government, from 40 years ago when FOIA was passed to the present time."

Sen. Patrick Leahy describes the Bush administration's approach to free information:

"[The Bush-Cheney Administration] shifted the upper hand in FOIA requests from the public to federal agencies. The new policy says, in effect, 'When in doubt, don't disclose, and the Justice Department will support your denials in court.' It undermines FOIA's purpose, which is to facilitate the public's right to know the facts, not the government's ability to hide them," he said.