The Obama administration “is unaware” that agency compliance with the Freedom of Information Act under its watch is “systematically broken,” according to a long-expected House Oversight panel report.
A year in preparation and reflecting several hearings that gathered complaints from transparency advocates and journalists, the majority party’s report cited interference from White House political strategists, unnecessary agency delays and sometimes-prohibitive fees.
“When President Obama took office he promised an ‘unprecedented level of openness in government,’ ” said Rep. Jason Chaffetz, R-Utah, the chairman of the Oversight and Government Reform Committee. But “backlogs of FOIA claims have more than doubled since 2009 and agencies are sitting on piles of unfulfilled document requests. Instead of the open and transparent government promised, this administration is playing a game of hide the document from the American people.”
The compilation of instances of iffy compliance with FOIA comes as the House prepares for an evening floor vote on a bipartisan FOIA reform bill (H.R. 653) that would impose a 25-year sunset on all requested documents exempted under FOIA, strengthen mediation powers of the Office of Government Information Services within the National Archives and Records Administration, and task the General Services Administration and Office of Management and Budget with creating a consolidated FOIA request portal on the Web.
The new report calls the State Department the “worst” responder to FOIA requests, citing court decisions in the Hillary Clinton email saga, and tracing some slow responses to a 2009 memo from then-White House Counsel Greg Craig requiring agencies to check with the White House when its “equities” are involved in requested documents.
Yet “evidence shows political involvement in the FOIA process does not end at the White House,” the report said. “Political officials at the Department of Homeland Security, the Department of State and the Department of Justice have interfered with the release of documents. In multiple cases brought to the committee’s attention, FOIA requests were subjected to an additional layer of review for political purposes and documents deemed problematic or embarrassing were withheld from release.”
The State Department has numerous open requests that are nearly a decade old, the report added, and the department “takes months to process simple requests, and nearly a year for more complex cases that qualify for expedited treatment.”
As evidence of the administration’s “unlawful” secrecy on FOIA compliance, the report quoted one government employee saying, “We live in constant fear of upsetting the WH (White House).”
The Federal Communications Commission in one instance redacted the chairman’s name and initials in work-related emails, “making it difficult for requesters to determine who at the agency is accountable for any decisions, based on a clearly improper use of the privacy exemption,” the report said.
The Food and Drug Administration redacted the resumes of academics who serve on its advisory panels, even though many of them post their own curriculum vitae online, the report said. One Customs and Border Protection employee was denied documents requested under FOIA for his own travel and communications. GSA, according to the report, once found a greater number of relevant documents than was in the scope of the initial request. “Despite the requester repeatedly confirming that all of the documents identified were of interest and he would be willing to pay for the documents, GSA refused to provide the records, stating, ‘We don’t want to charge you for information that is not responsive to your request.’ "
To illustrate the problem of excessive fees that may deter some requesters, the report offered an anecdote involving the Mexican drug lord “El Chapo,” whose recapture dominated this weekend’s news. The Drug Enforcement Administration in March 2014 estimated that it would charge a requester nearly $1.5 million—possibly the highest ever fee, the report suggested. The following January, the requester was notified that servicing the request would involve pulling together an estimated 13,051 case files and “would create considerable workload. But assuming that $200,000 of that fee came from photocopying (which would put the total number pages at 2 million),” the report said, “that would put the time estimate at over 40,000 hours, or 1,785 days. That's almost five years of constant work without breaks. The DEA might want to look into a more efficient system for processing—or invest in a redaction drone.”
The lawmakers also blasted the Justice Department’s governmentwide FOIA report card, saying it gave the highest marks to State and others the lawmakers consider poorly performing. It concluded that the FOIA process has been “unacceptably neutered,” adding that “more experienced requesters push through the process in hopes of eventually receiving something. Less experienced requesters are shocked at the delays and procedural burdens. In the end, agencies close more than 40 percent of requests without releasing even one document.”
White House spokesman Josh Earnest on Monday defended the administration’s “pretty good record” on transparency, noting that in fiscal 2014 it processed 647,142 FOIA requests, of which more than 91 percent were fully or partially fulfilled. He cited efforts to proactively post documents online so that FOIA requests are needed less frequently and the fact that former Secretary of State Clinton’s emails are now pouring out.
“There’s no denying that we’ve made improvements that led people to have a better understanding of what is happening in their government,” he said. In response to a reporter’s query, he said the press ought to ask the same questions of Congress, “which makes the rules but right now isn’t playing by the rules.” He suggested lawmakers add a provision to the reform bill opening up their own files to information requests because it is also “the American people’s right to know what’s happening in Congress.”
A spokeswoman for the Justice Department’s FOIA offices said staff are still reviewing the report.
Patrice McDermott, executive director of the nonprofit transparency coalition Openthegovernment.org, told Government Executive the report’s conclusions were fair. “Many of the specific items are anecdotal and they identify real problems encountered by the involved organizations and individuals,” she said. Others “are highly-researched and reliable, and can be seen to identify documented trends and issues with the implementation of the FOIA.”
House Oversight ranking member Rep. Elijah Cummings, D-Md., who did not sign the report but co-sponsored the legislation, said on Monday, “The president promised openness, and he delivered. President Obama reversed the Bush administration’s presumption of secrecy, and federal agencies are now responding to more FOIA requests than ever before. Unfortunately, Republicans in Congress starved agencies of resources as FOIA requests increased to record levels, and then they act surprised that there are backlogs. There is no doubt that the FOIA process can and must be improved, …But issuing this erroneous, incomplete, and highly partisan staff report—which has never been vetted or voted on by the committee—will not help these goals.”