Under grilling by top GOP oversight official Rep. Darrell Issa at a hearing Thursday on special political reviews of document requests under the Freedom of Information Act (FOIA) submitted by journalists, watchdog groups and lawmakers, Obama administration officials defended the process saying, in the words of a top lawyer, the practice was “sound managerial practice.”
But even while defending the special reviews by Department of Homeland Security Secretary Janet Napolitano’s top political lieutenants, the agency’s top FOIA official admitted the serious delays caused by the process were “not up to my standards” and pointed to changes made after the Associated Press requested reams of documents about how it worked in the summer of 2010.
The special political reviews stem from changes Obama administration officials made to strengthen a 2006 policy to alert top political aides to sensitive FOIA requests shortly after the president took office in January 2009.
The process flagged requests submitted by journalists, watchdog groups and, in one case, a GOP senator for special review by top political aides.
Until July 2010, sensitive FOIA requests were held until political appointees gave a “thumbs up” on the release, causing delays.
The new system announces the pending release of sensitive documents one day before they are sent to requestors. However, during that one-day period, political appointees can still object to the release, for instance arguing not enough information was redacted.
Rep. Patrick Meehan, Pennsylvania Republican, referred to an email from Mary Callahan, the top FOIA official at DHS, who said about the initial review process, “This level of attention is crazy. I really want someone to FOIA this whole damn process.”
Callahan said in the hearing, “The initial process for the awareness review was not efficient and it had its management challenges.”
Ivan Fong, the top lawyer at DHS appointed by President Obama, defended the process forcefully, saying Issa’s report on the issue angered him and, “it is not only legally permissible, but sound managerial practice, for the Office of the Secretary to be informed of and, in coordination with the chief FOIA officer, to play an active role in overseeing the department’s FOIA processes.”
The hearing highlighted that two categories of document requests went straight to the Obama White House for an even more stringent review.
Requests regarding the calendar for cabinet officials and any document requests related to Obama’s massive economic stimulus were subject to those reviews.
“Why? Why does that require special White House review,” asked Rep. Jason Chafetz about the White House review of requests related to the stimulus.
“Sir, I’m the chief FOIA officer I’m not a policy person in this area,” Callahan said, “I believe I was instructed by the Office of the Secretary to do that and we processed it accordingly.”
Democrats on the oversight panel defended DHS in large part, pointing to the agency’s reduction in a massive backlog of FOIA requests and saying the reviews did not prohibit the eventual release of documents after the special political review.
“During the delays that Chairman Issa discussed, were officials weighing partisan political concerns, to your knowledge?” asked the panel’s top Democrat, Rep. Elijah Cummings.
“To my knowledge, they were not sir,” said Callahan.
“What were they doing?” asked Cummings.
“Sir, to my knowledge, the front office was wanting to have awareness of significant FOIA activities in order to engage the public on the underlying merits of the debate. They were not delaying it. They may not have had an opportunity to review it in a timely fashion,” Callahan said.
A top FOIA expert from a watchdog group called the reviews highly unusual and unlawful during the hearing’s second panel.
In the Electronic Privacy Information Center’s (EPIC) “many years of FOIA practice, we have never encountered policies like the DHS program at issue at today’s hearing,” said John Verdi, a senior counsel at EPIC. “In our experience, this program is unique. And it is uniquely harmful.”
Verdi said the practice was “unlawful” because under FOIA, agencies cannot discriminate about document requests based on who is requesting the documents.
DHS officials and Democrats pointed to a report by DHS inspector general which said that “no FOIA officer said that requestors were disadvantaged because of their political party or area of interest.”
However, DHS IG Charles K. Edwards cautioned about the breadth of the report’s conclusions on this under questioning from Cummings.
“Our scope was to look at the process … from the beginning to the end. We had some heartburn over the process … That’s all I did,” Edwards said.
Callahan tried to explain the apparent demotion of Issa’s whistleblower inside DHS, Catherine Papoi.
Callahan said DHS created a new position in charge of Papoi’s office, and Papoi was not promoted to that new position, so she wasn’t technically demoted.