President Barack Obama’s administration officials are perpetuating a “broken” and politicized Freedom of Information Act (FOIA) process and are deliberately holding back public records to which Americans are entitled, a new congressional report finds.
The executive branch “encourages an unlawful presumption in favor of secrecy” in responding to public information requests and creates “barriers” to accessing records, according to a committee on House Oversight and Government Reform (HOGR) report. That presumption of “secrecy,” a contradiction of the law’s explicit presumption of openness, comes directly from the White House, the committee claimed.
“We live in constant fear of upsetting the [White House],” the National Archives and Records Administration said in a document it failed to redact and released to the Associated Press in the spring of 2015.
“The statement is a simple and clear reminder about the chilling effect that White House involvement in the FOIA process can have on agencies,” the report said.
The White House circulated a then-private memo to federal agencies in 2009, directing them to forward any FOIA requests involving “White House equities” to the White House’s legal counsel for review.
“It’s a big deal to democracy — it’s a very serious threat,” David Burnham, former New York Times investigative reporter and co-founder of the FOIA-filing Transactional Records Access Clearinghouse (TRAC), told The Daily Caller News Foundation about the federal government hindering the free-flow of public information.
Burnham, a long-time FOIA requester, said government resistance to releasing public information long predates the Obama administration. Obama, however, offered big promises of transparency when he first entered the Oval Office.
“This resistance does hinder public and congressional examination of real problems in the agencies,” Burnham said. “Whether it’s worse now than it was under Nixon or other administrations, it’s hard to say. The government is unbelievably awful in our view and unlawful, but I’m not sure it’s worse than it was.”
Lawsuits against the federal government in 2015 reached their highest levels since 2001. Burnham said this could be partly attributed to non-profit watchdog groups like Cause of Action and Congress Watch aggressively challenging the Obama administration’s FOIA actions in federal court.
“When President Obama took office, he promised an ‘unprecedented level of openness in government,’” said HOGR Chairman Jason Chaffetz, a Republican from Utah, in the press release. “This report demonstrates that is not the case. 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.”
Members of the media have said they gave up on FOIA as an information-gathering tool because delays and redactions made the law “wholly useless for reporting to the public,” according to the report.
Inexperienced FOIA requesters, whom Burnham says are at a particularly “big disadvantage,” were “unprepared” to fight agencies’ “delaying tactics,” the report said.
The committee’s report documents numerous incidents in which agencies delayed requesters’ responses for years, or listed inapplicable exemptions as a reason for denying requests. Here are some requesters’ experiences highlighted in the report:
- “I often describe the handling of my FOIA request as the single most disillusioning experience of my life,” a 26-year-old freelance journalist told the committee about his first time dealing with FOIA.
- Another person filed a request during one job, left that job to pursue a graduate degree, and worked at another office for four years before getting his initial response from a federal agency. The law requires agencies to respond with at least an acknowledgement of receipt within 20 days.
- The Department of State, which HOGR said is “arguably the worst agency with respect to FOIA compliance,” denied a request for a contract because the agency couldn’t identify the record using the contractor’s name. Instead, the Department of State told the agency to use more specific information, like the contract number, “creating a situation where the requester effectively needed the contract in order to get the contract.”
- The Department of Defense (DOD) in 2014 only agreed to fulfill Vice News reporter Jason Leopold’s request for documents if Leopold agreed to never file another FOIA request with DOD.
Obama administration officials don’t acknowledge how bad the federal government’s FOIA culture has become, the report said.
The Department of Justice issued a 2015 report on FOIA practices in which agencies only needed to meet “low threshold” criteria — like sending staff to FOIA training — to receive the highest marks. Hence, some of the worst performing agencies, like the Department of State, received the highest marks.
The House of Representatives is expected to vote Monday on a bipartisan bill requiring more documents to be published online and requiring inspectors general to review their agencies’ FOIA practices regularly.
For now, TRAC is generating reports on agencies’ FOIA responsiveness to “shame” them into better behavior, Burnham said.
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