Politics and FOIA combine for combustible mix at hearing
In a heated and highly partisan hearing on Thursday, Republican lawmakers repeatedly accused DHS officials of delaying or obstructing potentially embarrassing documents from being released to the news media, Congress and watchdog groups.
Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., argued the department's policy of allowing political appointees to review certain requests for records before public release "reeks of a Nixonian enemies list, and this committee will not tolerate it."
Committee Republicans released a 153-page report on Wednesday that found that copies of all "significant" FOIA requests were regularly routed for review by DHS Secretary Janet Napolitano's political staff.
Beginning in September 2009, career staff in the FOIA Office were not permitted to release responses to these requests without approval from political staff, according to the report, part of an eight-month investigation by Republican congressional staff.
Democrats on the panel, however, argued DHS' policy, while inefficient, fell well short of Issa's "extreme accusations."
"We found no evidence that DHS withheld any information for partisan political purposes," said Rep. Elijah Cummings, D-Md., the committee's ranking member. "We found no evidence that FOIA requestors received different treatment based on their political affiliation. And we found no evidence that DHS officials implemented the FOIA process to advance partisan political objectives."
The GOP members' report also was criticized by DHS General Counsel Ivan Fong, who argued the investigation "painted an unfair and irresponsible portrait" of his staff.
The political review policy, which has been in place since 2006, has since been revised to make it more timely and efficient, DHS officials testified.
The dispute centers on several hundred FOIA requests that the department deemed "significant," either because they involve ongoing litigation, relate to "sensitive topics," involve presidential or agency priorities, or came from the media. In these instances, DHS political officials were required to review the requests to better "engage the public on the merits" of the policy issues, said Mary Ellen Callahan, DHS' chief privacy officer.
But Callahan said no documents were withheld or redacted during this review process. "I am not aware of a single case in which anyone other than a career FOIA professional or an attorney in the Office of the General Counsel made a substantive change to a proposed FOIA release," she said. "To my knowledge, no information deemed releasable by the FOIA Office or the Office of the General Counsel has at any point been withheld and responsive documents have neither been abridged nor edited."
While the department's inspector general agreed with Callahan's conclusion in a report released this week, it also found that political officials played an "unprecedented" role in reviewing FOIA documents. The IG found that FOIA requests were repeatedly subject to lengthy and unnecessary bureaucratic delays the IG said were the antithesis of the Obama administration's policy on openness and transparency in government operations.
"While the department has a legitimate need to be aware of media inquiries, we are not persuaded that delaying a FOIA release so that officials can prepare for expected inquiries is the best public policy," said acting IG Charles Edwards. "Again, the problem is that some of these inquiries unnecessarily delayed the final issuance of some FOIA responses."
The IG's report found that inquiries and suggestions from political appointees often delayed the release of documents by several weeks, in some cases violating the statutory deadline to complete requests within 20 business days. Many of the delays, Edwards said, were caused by DHS appointees who expressed concern about correcting typographical and grammatical errors in cover letters.
"The information we received demonstrates that the review process created inefficiencies in the FOIA process," he said. "Such inefficient oversight of significant requests before release led to statutory noncompliance or prolonged delays in some cases. Additionally, various individuals who reviewed significant cases, including senior DHS officials, had little to contribute to the department's disclosure program."
Callahan acknowledged the delays and said they "did not meet my standards." The department now has created an intranet system in which FOIA requests can be immediately shared with political officials rather than relying on email. Political appointees are allowed only one business day to object to the release of the documents based on nine provisions in the FOIA law that exempt certain information from public release.
The controversy was first raised by a DHS whistleblower, Catherine Papoi, a former deputy unit chief in charge of FOIA. Issa asserted that Papoi was retaliated against after complaining to the IG that political appointees were interfering with FOIA requests. Issa accused DHS leadership of improperly demoting Papoi after she met with Issa's staff.
DHS officials said Papoi was under consideration for a senior executive position, which eventually went to another, more experienced employee. That decision, officials said, was made several months before Papoi met with Issa's staff.