The federal government has a FOIA problem: there is far too much secrecy. Many agencies have failed to fulfill the Obama Administration’s mandate to adopt a “presumption of openness.” There has been no grand shift toward a culture of releasing information proactively—before a FOIA request is made. The system remains broken, and backlogs continue to grow. On February 4, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) and Ranking Member Elijah Cummings (D-Md.) expressed their commitment to improving Freedom of Information Act (FOIA) administration when they sent a strongly worded letter to Office of Information Policy (OIP) Director Melanie Pustay, demanding answers.
Yesterday the Project On Government Oversight, OpenTheGovernment.org, and over 40 other government transparency and accountability organizations sent a letter thanking Reps. Issa and Cummings for working together to watchdog this critical tool for government accountability. We also sent a letter to President Obama urging the Administration to make FOIA more of a priority.
OIP at the Department of Justice is responsible for government-wide FOIA policy implementation, compliance, and enforcement, and the Committee on Oversight and Government Reform has principal jurisdiction over FOIA in the House of Representatives. The Committee is taking its oversight duties seriously. The letter states, “Given OIP’s role in implementing compliance with FOIA, the Committee seeks information about a number of issues including what many term as outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services.”
The Justice Department got a lot of flak from transparency organizations during Obama’s first four years for actions that seemed to be in direct contradiction to the President’s pledge for a new level of openness. Last year, the National Security Archive even gave DOJ their annual Rosemary Award for worst open government performance in 2011. As one of the contributing factors, the group cited Justice’s “‘FOIA-as-usual mindset’ that has failed to transform decades-old FOIA policies within its department, much less throughout the government.”
Part of the problem is that the Department of Justice actually has a conflict of interest—conflict of mission, really. On one hand, it is responsible for defending agencies’ decisions to withhold information, and on the other, it is tasked with guiding the agencies FOIA policies. There is an inherent tension here that the Committee addresses in their questions to OIP.
So what critical FOIA issues did the Committee focus on in their detailed letter to OIP? One of the most important is outdated FOIA regulations. When President Obama issued his January 2009 FOIA memo on the “presumption of openness” and the Attorney General subsequently issued new FOIA guidelines for the heads of executive departments and agencies, it was supposed to be a watershed moment for transparency and accountability. Under these directives, agencies are now required to disclose requested information to the public unless releasing it is explicitly prohibited by law or protected by statutory exemption. Disclosure is supposed to be the rule and withholding, the exception. Agencies were required to update their FOIA regulations accordingly.
However, Issa and Cummings’ letter states that as of December 2012, 62 of 99 agencies had not updated their FOIA regulations since the 2009 memo. “More than half of the agencies surveyed (56 of 99) had not updated their regulations since before the OPEN Government Act of 2007, and 31 agencies have regulations more than a decade old.” What’s more, DOJ has not updated its own regulations since 2003, hardly setting a model example.
In addition to questions about outdated FOIA regulations, Issa and Cummings also asked OIP how agencies are being advised to reduce their FOIA backlogs. From FY 2010 to FY 2011, backlogs increased a whopping 20.8 percent—this is a serious, ongoing problem. The Representatives point out that the Department of Homeland Security (DHS) receives about 27 percent of total FOIA requests, but is responsible for over half of the backlog, and pinpoints the problem at a single component of DHS, the U.S. Citizenship and Immigration Services. One of the main reasons FOIA doesn’t work well for the public is how long it takes requesters to receive information responsive to their requests.
Another issue the Committee raised in the letter is something POGO has long advocated against—overuse and abuse of FOIA exemptions. In addition to nine permanent FOIA exemptions, agencies also use hundreds of statutory exemptions known as b(3)s. The b(3) exemption allows agencies to invoke other laws (outside the FOIA) to deny requestors. Executive branch agencies use an untold number of b(3)s to withhold information, often with little oversight. Agencies often seek overly broad or unnecessary exemptions—and sometimes Congress complies.
Then, far too often, the agencies use these exemptions to unnecessarily withhold public information. The Sunshine in Government Initiative created a database of all the exemptions used in 2008-2009 and how they were used. Interestingly, they found that the b(3) exemption used most widely was a law protecting losing contracting bids.
But the problem goes beyond abuse of statutory exemptions. Issa and Cummings note that DOJ itself increased the number of times it invoked Exemption 5 (for the deliberative process) in 2011.
The letter also discusses compliance with the E-FOIA requirement to post frequently requested records online. This kind of proactive disclosure is key to the future of meaningful open government. Five or ten or fifteen people should not have to file the same FOIA request—this creates duplication of effort and wastes taxpayer dollars. If the vision of the new FOIAonline multi-agency portal is fully realized, the public will be able to easily search for and access the records they are seeking in an online reading room. In an ideal world, filing a FOIA request would become a last resort option in the rare case that the information is not already available in a searchable, sortable database. But clearly we are still a long way from full government-wide compliance with the intent of this E-FOIA requirement.
Finally, the Committee questions OIP’s actions on dispute resolution services. Agencies are now required to designate FOIA Public Liaisons for mediation, and the OPEN Government Act established the Office of Government Information Services within the National Archives to help resolve disputes between agencies and requesters. But Issa and Cummings point to a recent study by the Transactional Records Access Clearinghouse (TRAC) which found that the number of FOIA lawsuits is growing. According to the study, there were more court complaints asking federal judges to force the government to abide by FOIA during the first term of the Obama Administration than there were under President Bush’s last term. This is troubling, to say the least.
The House Oversight and Government Reform Committee has asked for DOJ’s responses by February 22, 2013—just in time for Sunshine Week (March 10-16).