Government Secrecy Put On Trial

By Megan R. Wilson and Dustin Weaver, The Hill

02 June 15

 

ndless delays. Inflated costs. Stonewalling officials.

And in at least one case, redactions made in duct tape.

Welcome to the Freedom of Information Act (FOIA) — bureaucracy’s house of horrors and the subject of a two-day hearing in the House this week aimed at spotlighting what lawmakers say is a broken system.

While FOIA was passed to bring the government’s work into the light, it has resulted in the creation of a maddening system that thwarts reporters, advocacy groups and lawyers at every turn.

Members of both parties have expressed increasing frustration over the backlog in obtaining open records and the slow-walking of requests, with the scrutiny amplified by the battle over access to Hillary Clinton’s emails at the State Department.

“What’s frustrating for reporters, open government organizations and members of the public is that the Obama administration made a really strong commitment to transparency at the beginning of their tenure,” said Adam Marshall, a legal fellow at the Reporters Committee for Freedom of the Press.

“Unfortunately,” Marshall said, “that has not translated into real significant differences in the day-to-day experiences of the public.”

Legislation has been introduced in the House and the Senate that would crack down on FOIA obstruction while making reforms to streamline the process.

Seeking to drum up support for legislative action, the House Oversight Committee has invited multiple panels of witnesses, including members of the press, to tell their tales of woe.

The witness list includes Jason Leopold, a reporter at Vice News who had been dubbed a “FOIA terrorist” by a federal agency and has led the push to release Clinton’s emails; David McCraw, the vice president assistant general counsel for The New York Times; Tom Fitton, the president of Judicial Watch; and Sharyl Attkisson, a former CBS reporter who says she was rebuffed when investigating the terrorist attacks in Benghazi, Libya.

Lawmakers will come to the hearing armed with ammunition of their own, thanks to Chairman Jason Chaffetz’s (R-Utah) open call for FOIA complaints that was circulated around Washington.

The committee’s request unearthed several eye-popping cases that lawmakers could bring up when five FOIA officers testify on Wednesday.

Among them was the case of ThinkGlobal, an online print and publishing company that sought documents from the Commerce Department’s International Trade Administration.

The company was told the documents could be provided — but at a cost of $2.3 million. After a year of appeals and follow-ups, the documents were handed over at a final cost of $190.

The conservative Competitive Enterprise Institute says it ran into difficulty when seeking the emails that Lisa Jackson, the former head of the Environmental Protection Agency (EPA), sent under an alias.

The EPA told the group it had identified 120,000 records that could be covered under the group’s request — but suggested releasing them all could take 100 years.

“As a reminder, to fairly manage our limited resources so as to equitably respond to other Americans who have submitted FOIA requests, 100 documents per month is the production schedule” for this request, the EPA’s FOIA office wrote in its response. At that rate, 1,200 documents would be released each year, meaning the request would take a century to complete.

“This is a very well-thought-out defiance,” said Chris Horner, a senior fellow at the Competitive Enterprise Institute. “This is a very well-thought-out bird they’ve flipped.”

While some FOIA responses aren’t illegal, they occasionally take a turn toward the absurd. One set of documents provided to The Hill had duct tape obscuring redacted text, rather than the usual black marks.

The complaints about records requests aren’t limited to the Obama administration.

The Oversight panel has been flooded with examples of denials, delays and excessive secrecy stretching back almost 20 years.

The National Security Archive, an independent research organization, waited 17 years for the National Archives and Records Administration to provide four 50-year-old documents concerning U.S.-Guatemala relations. The documents ultimately arrived with heavy redactions, the group said in a letter to the Oversight Committee.

Advocates say agencies also misuse exemptions in FOIA law to redact information that should be public knowledge, often to avoid embarrassment.

In 2012, the American Immigration Lawyers Association (AILA) asked for records on complaints against immigration judges, according to a letter filed to the Oversight Committee by Public Citizen.

Only after AILA sued in 2013 did the government begin releasing the documents. Extensive portions were blacked out, with the documents labeled “non-responsive” to the request, which is not a valid reason to exempt information under FOIA law.

“The district court judge ultimately ordered the agency to release such [“non-responsive”] information, and the subsequent releases reveal that many of the redactions were made to shield information that was plainly responsive to the plaintiff’s request but embarrassing to the agency,” Public Citizen said.

The House hearings, occurring both Tuesday and Wednesday, are aimed at drawing attention to legislation moving through Congress intended to reform the open records process. A previous version, which was opposed by some federal agencies, failed to move forward last year.

The new bills would require agencies to post more documents online, codify the presumption of openness ushered in by the Obama administration, strengthen the FOIA ombudsman’s office, and sunset the use of exemptions for sensitive government deliberations after 25 years.

Officially called the (b)(5) exemption, the latter provision is often derided as the “withhold because you can” clause, and is widely abused in FOIA responses, according to experts.

In one example, the CIA declined to release records to the National Security Archive about the Bay of Pigs operation in 1961, citing the (b)(5) exemption because draft reports about the invasion could “confuse the public.”

While advocates support the proposed FOIA reforms, they fear little will change until government officials can be punished for non-compliance.

“Abuse of (b)(5) is a problem, but the problem is they can get away with it because FOIA is on an honor system that has no accountability for being dishonorable or breaking the law,” Horner said.

“If you want to solve all of these other problems, then make it matter.”