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The following is a news commentary
In 2013, when the government repeatedly provided false, misleading and incomplete information regarding Obamacare.gov, I filed a Freedom of Information (FOI) request to obtain the facts. Under the law, I should have received the material within about 20 days. It was relevant to news stories I was investigating at the time for CBS News.
Like many federal agencies, Health and Human Services (HHS) simply broke FOI law. My FOI request went unheeded.
Eventually, though the news value of the withheld material had long since subsided, I filed a lawsuit to obtain the documents. Most people can’t afford to challenge the government’s illegal responses to FOI. It takes time and money. The FOI experts at Judicial Watch filed the lawsuit against HHS on my behalf. Instead of ordering HHS to promptly comply with FOI law, the Justice Department provided attorney to defend HHS in court (at taxpayer expense).
Under supervision of the court, HHS finally agreed to provide the public documents to me under a “rolling production schedule.” This is the latest tactic employed by federal agencies. When forced to provide documents, they offer to do it on a “rolling” schedule in a way that satisfies the court –but at a rate that furthers the agency’s goal of obfuscation and delay.
What was the HHS proposed “production schedule”? It would turn over 500 pages every other month. I pointed out to the judge that it would take approximately 14 years for them to finish their initial production. I needed and was entitled to this public material in 2013; I was now being offered it by approximately 2029.
District Judge Tanya Chutkan replied:
I’ve done my share of document reviewing in my life. I could do 500 pages in an afternoon. So I don’t understand this. And the plaintiff is right. This is like a 14-year schedule. This is unacceptable. So you need to tell me exactly what’s involved so I can assess this production rate of 500 pages every two months, because that’s not going to fly. –U.S. District Judge Tana Chutkan in Attkisson v. HHS, July 10, 2015
The result? HHS tripled the speed of its production rate, which isn’t much better in terms of practicality. The documents provided to date are so heavily redacted as to be meaningless. Yet, I cannot challenge the redactions as improper until the production is complete. Somewhere, perhaps, in the next decade.
Realizing the futility of this endeavor, I recently offered that if an HHS official would simply agree to answer questions about public matters in an interview with me, I would drop the FOI lawsuit. This would save them time, save taxpayers a great deal of money and serve the public interest. After all, the only reason the FOI was necessary in the first place was because HHS wouldn’t answer questions.
Here is the Justice Department’s response to Judicial Watch attorney Michael Bekesha regarding my offer to drop the case if HHS would simply do an interview:
“We appreciate your thoughts on possible ways to resolve the issue. However, as to the suggestions you offered after the last status conference, the agency has considered them but does not believe they are feasible. The agency remains willing to continue to explore ways to narrow the scope of records at issue in the litigation. Moreover, we also could explore whether your client would be willing to dismiss the case, in which case the agency could continue to process the records at the approximate current processing rate but without the time and expense of court involvement.” –Jeremy Simon, U.S. Department of Justice attorney
In other words, the government is generously offering to possibly continue its remarkably slow processing rate of redacted documents if I drop my lawsuit. The Justice Department lawyer is also making the equally generous offer to ‘allow’ me to dial back my document request (which I have already done on more than one occasion).
Rather than sit for an interview, HHS would rather spend its time and taxpayer money in a lawsuit that shouldn’t have been necessary. And why not? It’s not money out of their pocket.