This story was first published on July 3, 2015.
In June of 2015, the House Oversight Committee convened hearings to examine failure of the government to comply with federal Freedom of Information Law. The witness list is below.
"The hearing on Tuesday began with Sharyl Attkisson, a former CBS journalist, who called FOIA 'a pointless, useless, shadow of its intended self' that is 'broken by design.'
Attkisson talked about a particular request that she made when her daughter was 8 years old that was not answered until her daughter left for college.
'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 them,' Attkisson testified." [see full opening statement below]
VIDEO: Freedom of Info Act Hearing
Read article on the hearing by Reporters Committee for Freedom of the Press
Sharyl Attkisson Opening Statement:
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.
Sharyl Attkisson is a five-time Emmy Award winner and recipient of the Edward R. Murrow award for investigative reporting. This Fall, she will host a new, national Sunday morning news program that focuses on investigative and accountability reporting.
Attkisson authored the New York Times bestseller Stonewalled. For thirty years, she was a correspondent and anchor at CBS News, PBS, CNN and in local news.
In 2013, she received an Emmy Award for Outstanding Investigative Journalism for her reporting on “The Business of Congress,” which included an undercover investigation into fundraising by Republican freshmen. She received two other Emmy nominations in 2013 for “Benghazi: Dying for Security” and “Green Energy Going Red.” Additionally, Attkisson received a 2013 Daytime Emmy Award as part of the CBS Sunday Morning team’s entry for Outstanding Morning Program for her report: “Washington Lobbying: K-Street Behind Closed Doors.”
In September 2012, Attkisson received the Emmy for Outstanding Investigative Journalism and the RTNDA Edward R. Murrow Award for Excellence in Investigative Reporting for the “Gunwalker: Fast and Furious” story.
Attkisson received an Investigative Emmy Award in 2009 for her exclusive investigations into TARP and the bank bailout. She received an Investigative Emmy Award in 2002 for her series of exclusive reports about mismanagement at the Red Cross.
Attkisson is one of the few journalists to have flown in a B-52 on a combat mission (over Kosovo) and in an F-15 fighter jet Combat Air Patrol flight.
Kenneth Y. Tomlinson Award for Outstanding Reporting
"Courage in the Face of Power" Award, Weyrich Awards
Pillar Human Rights Journalism Award for “Fearless Reporting in the Face of Government Retaliation.”
Investigative Emmy Award for "Investigating Congress."
Investigative Emmy Award nomination for "Benghazi: Dying for Security."
Emmy Award nomination for "Green Energy Going Red."
Daytime Emmy Award as part of CBS Sunday Morning team Outstanding Morning Program for "Washington Lobbying: K-Street Behind Closed Doors.”
Integrity in Journalism Award
Brian Terry Courage in Journalism and Reporting Award
Finalist, Gerald Loeb Business Awards for "The Business of Congress"
Emmy Award for Outstanding Investigative Journalism for "Gunwalker: Fast and Furious."
RTNDA Edward R. Murrow Award for Excellence in Investigative Reporting for "Gunwalker: Fast and Furious."
Emmy Award Nomination for Investigations of Congress: "Follow the Money."
Emmy Award Nomination for Investigating Aid to Haiti earthquake victims.
Emmy Award for Outstanding Investigative Reporting of a Business News Story for series on the Bush Administration's Bait-and-Switch on TARP and the Bank Bailout.
Investigative Reporter and Editors Finalist Award for "Investigating TARP."
Loeb finalist for Television Breaking News for “Follow the Money: Bailout Investigation."
Emmy Award Nomination for "Follow the Money."
RTNDA-Edward R. Murrow Award for Overall Excellence (CBS team award)
RTNDA-Edward R. Murrow Award for Overall Excellence (CBS team award)
Emmy Award Nomination for Investigating Dangers of certain prescription drugs and vaccines; and conflicts of interest in medical industry.
Emmy Award for Outstanding Investigative Journalism for series on mismanagement at the Red Cross: "Red Cross Under Fire."
Emmy Award Nomination for "Firestone Tire Fiasco."
Civil Justice Foundation Special Commendation for Firestone Tire coverage.
Investigative Reporter and Editors Finalist Award for series on the dangers of certain prescription drugs and vaccines.
Attkisson received several other awards for her reporting and producing, including a New York Black Journalists Association public service award, a Mature Media National Award, a Florida Emmy Award, a Sigma Delta Chi Award and a Florida Communicator's Award.
Sharyl Attkisson Investigative Reporter
Jason Leopold Investigative Reporter Vice New
David E. McCraw VP Assistant General Counsel New York Times Panel
Leah Goodman Investigative Reporter Newsweek Panel
Terry Anderson Adjunct Professor University of Florida Panel
Tom Fitton President Judicial Watch Panel
Cleta Mitchell Partner Foley & Lardner LLP Panel
Nate Jones Director of the Freedom of Information Act Project National Security Archive Panel
Lisette Garcia FOIA Resource Center Panel
Gabriel Rottman Legislative Counsel/Policy Advisor American Civil Liberties Union
Anne Weismann Executive Director Campaign for Accountability
Link to hearing website and documents
At 01:38:00, when asked by Mr. Mulvaney if you've ever written about the inability to obtain FOIA documents from this administration, why didn't you say "Yes! I wrote an entire book about the Obama administration's efforts to avoid following FOIA law. It's a best-seller called Stonewalled."?
That would not have been self-promotional, it would have been an appropriate response that would allow the uninformed (both committee members and viewing public) to learn more.
Fred Young says
First of all I'd like to say to Sharyl that you did a very nice job at the House Oversight Committee hearings. After reading your book it was great to hear you speak in person. As always you only spoke about the facts you have gathered through the years with actual documentation and did not speculate about anything, which is true to your character which has won the respect of all of us who know your work.
So far I've only listened to the first day's testimonies. I've added times to some of the material here to make it easier to find the following information in the YouTube Video referred to here.
In my estimation the "key to the whole problem" in regards to NOT being able to acquire responses from the government when filing FOIA requests is explained below. As Sharyl points out, this problem is definitely by design.
The first thing that really startled me was when Mr Connely said that a memorandum from the 1988 Reagan White House was "identical" to the directive issued by the White House on April 15, 2009. 1:16:15
This is a typical down right lie intended to cover-up, for this incompetent administration, in which he gets caught. just follow along and you'll see.
The directive dated April 15, 2009 from the Obama White House read by Chairman Mr Chaffetz
The memo, addressed to all executive department and agency general counsels, says, “Executive agencies should consult with the White House Counsel’s Office on all document requests [including Congressional committee requests, GAO requests, judicial subpoenas, and FOIA requests] that may involve documents with White House equities.”
Chairman Chaffetz goes on to read the 2nd paragraph, which isn't written in the Reporters Committee document that's referred to here; however I believe is also very important to note.
"The need to consult with the White House arises with respect to all types of document requests, including Congressional Committee Requests, GAO requests, Judicial Subpoenas, and FOIA requests."
Please NOTE the words "ALL TYPES OF DOCUMENTS" in the 2009 directive.
In retrospect, here is the directive from the 1988 Reagan White House which was read by Mr Mulvaney from South Carolina. 1:34:16
"In processing requests from FOIA and the privacy act of 1974, the search for responsive records occasionally turns up White House records located in the White House files."
I would love to see both of these entire documents, but Chairman Mulvaney goes on to point out by scanning farther down which spells out pretty much what documents the 1988 directive were speaking of.
"Records originating with or involving the White House office"
Then he points out that they specifically identify what that means
"Deputy Chief of Staff, communications speech writing, research public affairs, etc. Press briefings are not covered, because they're in the public domain." He goes on to say If stuff comes for the Executive Office of the President the White House would like to see that, and finally "if documents are classified or sensitive to foreign relations" they would like to see those requests
Please NOTE the word "OCCASIONALLY" in the 1988 directive.
These directives are by far different in that the 1988 lists specifics where as the 2009 document, issued by the Obama White House, calls for ALL FOIA requests being required to be reviewed by the White House.
If the procedures were followed properly my guess is that they could cut the FOIA staff in half and be able to handle twice as many requests as are being submitted today.
It would eliminate law suits to require even the acknowledgement of many requests , Court hearing time, Judges rulings delays, White House staff reviews for MOST requests and the time it took for them to get around to looking at them if they even do at all.
A ten year old child could figure out a better process than what is in place today.
Does this whole debacle sound familiar? Just think of the IRS scandal in which Lois Learner and her staff refused to even look at requests from certain groups requesting tax free status for years.
Jack Mosby says
The left has destroyed the last shreds of legitimacy in broad areas of the law. They selectively enforce the laws that either serve or oppose their agenda, from immigration law to firearms restrictions, and politically-driven selective enforcement is the same as no law at all. Decent people no longer have any moral obligation to follow the law - law is a liberal toy and has no moral legitimacy. Most of us will follow most laws out of fear of politically determined punishments, but that is very different from the level of compliance that would come from respect for the institutions.
Bill Andrews says
Sharyl in reading all of this Article ??? "Kind of makes you wonder than How the Supreme Court > The Department of Justice + Lawmakers can Do there Job's then, and right things in a Honest legistlative Manor. Remind's me of a depiction on the front of a MAD Magazine = Pant's half up in a mid-summers gallop to vote on New Bill's to right wrongs ?? " Sure go ahead and laugh ?, we don't throw your life's dis-appiotments in your face ? (( Speed Bump ? ))