Why I’m Suing the Justice Dept.: Its Unlawful Freedom of Info. Response

(Above Image: FBI Headquarters in Washington, D.C.)

On Nov. 19, I filed a Freedom of Information (FOI) lawsuit against the Department of Justice, which oversees the F.B.I.. For over a year, I had been pursuing public information that the F.B.I. holds—about me. Something any U.S. citizen has the right to do.

The response I got was typical of the response federal agencies provide to FOI requests today.

The F.B.I. first said it didn’t have any information that mentioned me.

I appealed, reiterating the information in my original request, which outlined a great deal of information that the F.B.I. is known to have regarding me (at the very least through my dealings with the F.B.I. as a reporter over more than 20 years).

FBI After the appeal, the F.B.I. told me that its original claim (that it had no information about me) was a mistake and the agency promised to reprocess it.

More time passed, and the F.B.I. sent me a few pages of cryptic material that didn’t include most of what I know exists (let alone the material of which I may not be aware).

I again told the F.B.I. that I was certain more information existed, including, for example, material from the F.B.I. background check conducted on me before I was granted a White House pass as a CBS News correspondent.

Eventually, the F.B.I. notified me by letter that there was a lot of material it could send me, but I would have to agree, in advance, to pay for the costs of producing it and specify my preference between having it delivered via paper or on a CD. I answered yes, I would pay, and that I wanted the material on DVD.

I didn’t hear back from them.

Eventually, I turned to a group that’s unmatched in terms of success in litigating Freedom of Information claims against the federal government, whether under Bush or Obama: the conservative watchdog group Judicial Watch. Judicial Watch has full time, experienced legal staff dedicated to FOI work.

Judicial Watch suggested we establish a clean record of the government’s unlawful FOI response by officially filing a brand new request that would become part of a lawsuit when unfulfilled.

We filed the request on Sept. 4.

On Sept. 22, we submitted the required certifications to ensure the request would be fulfilled.

Attorney General Eric Holder
Attorney General Eric Holder

(On Sept. 25 Attorney General Eric Holder announced his impending resignation.)

By Nov. 5, the F.B.I. was required by law to notify us of its determination regarding the FOI. However, there was only silence.

On Nov. 19, we filed our lawsuit.

This could take awhile.

In August, I filed a FOI lawsuit against the Department of Health and Human Services (HHS) for its non-response to public information I had sought about HealthCare.gov starting more than a year ago. Remember: they are supposed to answer these requests within 20 business days. At last word, the Justice Department attorneys answering the lawsuit against HHS said they just didn’t understand the HealthCare.gov request. We are now negotiating its revision. These things take time. Lots of…time.

It’s one of countless examples in the past decade of federal agencies thumbing their noses at Freedom of Information requests, whether filed by member of the public or news media. After all, there are no repercussions for their unlawful behavior. The information requests often fall into a bottomless pit and remain unanswered for months, even years, past their legal deadline. If and when they are answered, the responses are often incomplete, containing so many unsupported redactions and withholdings as to make them pointless.

Sometimes the news media or, more likely, watchdogs such as Judicial Watch, file lawsuits to force the release of public information. Even when the courts determine that a federal agency has acted unlawfully and a judge forces release of the material, there’s no disincentive for the feds to repeat the bad behavior. Nobody in the federal ranks is punished—in fact, it’s presumed by observers that those processing the FOI requests acted according to their instructions. What’s worse, if the federal agency is ordered to reimburse the plaintiff for legal expenses, the feds just pay up with your tax dollars.

On his first day in office, President Obama said he was instructing federal agencies to err on the side of disclosure in answering Freedom of Information requests. The record under Clinton and Bush had been abysmal. Obama was promising unprecedented transparency. Only the most sensitive material, such as that which could directly harm national security, should be kept from the public that owns it.

In reality, there is now a consensus among many journalists and open government groups that the Obama administration has been the least transparent in recent times, and the worst at properly responding to FOI requests.

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