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House Oversight Staff Report: FOIA is Broken
“Executive Branch culture encourages an unlawful presumption in favor of secrecy”
Update: The House passed FOIA reform bill
Secrecy is the order of the day at many federal agencies when it comes to their actions and to public records. That’s according to a new report today from the House Oversight Committee staff.
Today, the House votes on ideas to reform the Freedom of Information Act (FOIA) sponsored by House Oversight Chairman Rep. Jason Chaffetz and the lead Democrat on the Committee: Rep. Elijah Cummings. The action is an outgrowth of hearings held last June by the Oversight Committee.
In one unprecedented session, I and other journalists (from Newsweek and Vice News) testified to the Committee about the seriously broken system. Instead of being an effective tool to help the public obtain public information, the FOI process has been perverted by federal agencies and is now used to obstruct the release of public information.
Federal agencies operate with impunity: the Justice Department participates in and defends their illegal actions and lawsuits are defended with your tax dollars.
The Oversight report released today addresses “the complexity of the FOIA process that members of the media and other public stakeholders face, including a lack of communication from federal agencies, unreasonable redactions, and abusive fees.”
“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.”–Rep. Jason Chaffetz (R-Utah) Chairman, House Oversight Committee
The report lists the following key findings:
Ø The Executive Branch culture encourages an unlawful presumption in favor of secrecy when responding to FOIA requests.
Ø The administration is unaware that FOIA is systemically broken.
Ø Agencies create and follow FOIA policies that appear to be designed to deter requesters from pursuing requests and create barriers to accessing records.
Ø FOIA requesters have good reason to mistrust even fair and earnest attempts by agencies to fulfill requests. In the words of one requester, “something is desperately wrong with the process.”
Ø The Department of State had numerous open requests that are nearly a decade old, making them arguably the worst agency with respect to FOIA compliance.
Here’s the hearing from last June with journalists testifying:
Here’s a Reporters Committee for Freedom of the Press article about the hearing:
Here is my opening statement from the hearing:
The Freedom of Information Act or FOIA should be one of the most powerful tools of the public and the press in a free and open society. Instead, it’s largely a pointless, useless shadow of its intended self.
Federal bureaucrats paid tax dollars to act on our behalf routinely break the law with impunity, treating public material as if it’s confidential, secret information to be controlled by a chosen few. They withhold it from us, its rightful owners, while sharing it with select partners such as corporations or other so-called “stakeholders.”
In October, I filed a FOIA request when the CDC was not forthcoming about the epidemic of Enterovirus EV-D68 possibly linked to the deaths of 14 children and 115 paralyzed children.
In December, long past the supposed 20-day response time, I asked about the status. CDC answered incredibly that officials were just too busy with the Ebola crisis to fulfill my FOIA on EV-D68. Even now with the excuse of the Ebola crisis over, I still haven’t been given any EV-D68 information eight months after I asked.
In 2013, the Defense Department finally responded to a FOIA request I’d made in 2003. Too late to be of use for the news story I was working on back then.
Filing a lawsuit against the government takes too much time and money, and the agencies still play the delay game in court. In court, the Justice Department—itself among the worst of FOIA offenders—spends our tax dollars defending the offending federal agencies.
In one lawsuit I filed, the FBI spent months repeatedly claiming it didn’t have information it had previously acknowledged having in writing.
I also filed a lawsuit for HealthCare.gov material I sought in 2012. Apparently the government didn’t bother to start looking for documents I requested back in 2012— only now in 2015 are they doing so under court pressure. Documents provided so far are redacted beyond reason.
In 2014, when the State Department finally sent some documents responsive to a request I made in 2012, most of the content of relevant emails is redacted with the exception of the address line.
It should come as no surprise that federal agencies often treat Congress with the same disdain and lack of transparency. They guard and redact information as if Congress is the enemy rather than representatives of the rightful owners of the information. Federal officials create strict rules and reading rooms where members of Congress or staff may be allowed limited glimpses of requested material during certain hours of the day, all while under the watchful eye of a federal agency representative. Members of Congress may be forbidden from making copies. Sometimes note-taking is prohibited. This is not transparency.
The FOIA process is improperly politicized. Federal agency press flacks are notified and intervene when FOIA requests for possibly embarrassing information are made. FOIA law does not permit this political intervention, but it’s routinely done.
Federal agencies increasingly employ new tactics to obfuscate and delay. They say they don’t understand the request.
They claim it’s too broad.
They say a search would be unreasonable.
When they do provide a sensitive document, they redact nearly everything under exemptions such as b(5)—so overused, it’s now nicknamed the “withhold it because you want to” exemption.
They claim they lack funding and staff. But they have created their own FOIA backlog by putting simple requests that should be fulfilled without requiring a FOIA to the end of a long FOIA queue.
Even when a court finds a federal agency violated FOIA law, the government pays any fines and costs with your tax dollars, so there’s no deterrent to keep them from repeating the bad behavior.
Fixing FOIA is no easy task. We have learned that some federal officials use other tactics to avoid disclosure of their public actions. Some use private emails, personal servers, pseudonyms, text messages, all of which end up creating records that are not produced for FOIA requests. They instruct subordinates not to put public business in writing on email. And federal officials routinely fail to follow public records laws that require that they make a written record of verbal meetings for the public record.
In short, FOIA law was intended to facilitate the timely release of public information. Instead, federal officials have perverted it and use it to obfuscate, obstruct and delay. The broken system is not by accident, it’s by design.
In my view, the only thing that could change things would be meaningful criminal penalties for violators.