Members of Congress also wait on FOIA requests

By Dan Friedman

November 13, 2007

When 51 Democrats wrote the Pentagon in 2005 seeking information related to Britain's Downing Street memo on U.S. planning for the Iraq War, the signatories -- representing almost one-eighth of the House -- might have demanded deference.

But the members, led by then-House Judiciary ranking member John Conyers, D-Mich., sent their letter as a Freedom of Information Act request, accepting the legal standing of ordinary citizens.

The usually assertive Conyers recognized their minority status and a 23-year-old Justice Department policy instructing federal agencies to treat queries from members or staffers not acting through committee chairmen as FOIAs. Agencies can choose to act faster, but often do not.

That their document demands are treated like an average person's is accepted by many members. But it galls both old hands who cite days of a more powerful legislature and some newcomers.

"I'm a freshman, but I still thought that was beyond the level of a lack of respect that a member of Congress should be treated with," said Rep. Steve Cohen, D-Tenn., who said a query he made in January about Blackwater USA was processed by the Pentagon as a FOIA and ignored by the State Department.

Now in control of Congress, Democrats have begun taking issue with the FOIA policy.

"A growing number of members are fighting back," said Danielle Brian, executive director of the Project on Government Oversight, a nonprofit watchdog group that offers bipartisan training sessions to staffers on how to monitor federal agencies and programs.

POGO uses a blown-up version of Conyers' letter as an example of an approach to avoid. Brian said the training sessions have convinced many attendees that after writing FOIA, Congress need not accept the executive branch's interpretation of it.

In September, the House Homeland Security Committee took on the Homeland Security Department over a staffer's request for copies of a no-bid contract offered by the department's Office of Counternarcotics.

Told to have Homeland Security Chairman Bennie Thompson, D-Miss., make the request or the department would treat it as a FOIA request, the aide refused on principle, and Thompson instead questioned the agency's policy.

The department has since been more cooperative, Thompson said in a statement. But an agency spokesman said Homeland Security has not changed its approach.

"It's easy for them to get a letter from the committee chair[man]. And it's not a big deal," the spokesman said. "The department doesn't just hand out information."

The dispute in part is over who is officially acting as a congressional representative, or as Homeland Security puts it, who has "competent jurisdiction."

Beginning with a 1984 policy memo, the Justice Department has advised agencies to defer to chairmen with subpoena power or Congress as a whole, but not to individual members seeking information.

"Individual members of Congress possess merely the same rights of access as those guaranteed to any person," a 1998 Justice memo says.

But the Justice Department also has told agencies to use discretion in responding to members. And agencies, indeed, respond differently.

A HUD spokesman said the department does not treat any congressional queries as FOIAs. "We usually just give them the information," he said.

A State Department official said the agency responds to large document requests only from chairmen, instructing individual members to work through a committee. Defense and Interior have comparable approaches.

"It has been a longstanding policy of Interior and other agencies to treat individual members, including ranking members, as we would members of the public," a department spokesman said in an e-mail.

The agencies and some in Congress describe that approach as a longstanding and reasonable way to cope with otherwise overwhelming demands for information.

"It's a work management thing for the agencies," said Keith Ausbrook, minority counsel for the House Oversight and Government Reform Committee.

But many Democrats, and observers like Bill Allison, senior fellow at the nonprofit Sunlight Foundation, whose "Real Time Investigations" blog noted the way rank-and-file requests are handled, believe the practice has increased under the Bush administration.

By such measures as the number of documents declassified and amount of outstanding FOIA requests, the administration is far less transparent then its predecessors, these critics say.

Agencies' "tendency to impede the flow of information" is a symptom of the Bush administration's "obsession with secrecy," said House Oversight and Government Reform Information Policy Subcommittee Chairman William Lacy Clay, D-Mo., who is a sponsor of a FOIA revision bill that has passed the House.

Rep. Dennis Kucinich, D-Ohio, faulted the administration's secrecy and expressed interest in amending FOIA to ensure agencies quickly respond to members' information requests.

But former Oklahoma Rep. Mickey Edwards, a member of the House GOP leadership in the 1980s and early 1990s, argued the FOIA issue reflects a more longstanding loss of institutional power by Congress.

Edwards said the shift accelerated when Republicans, out of party loyalty, took the side of the Bush White House over institutional prerogatives, including requests for information.

Some current members said they were not familiar with the policy of not treating all requests from legislators the same, which has been overshadowed by higher profile fights this year between the White House and committee chairmen.

Edwards argued the treatment of rank-and-file members is emblematic of a tendency in Congress to cede too much power to the executive branch.

"I probably would have fired any staff member who said we need to file a FOIA request to get information," he said.

By Dan Friedman

November 13, 2007