Members of the House of Representatives:
As organizations dedicated to openness and accountability, we have serious concerns about an amendment to the Department of Homeland Security (DHS) appropriations bill offered by Representative Justin Amash (R-MI) that would ban the use of funds for any action by a political appointee to delay, vacate, or reverse any decision by an employee in the Privacy Office of the Department of Homeland Security to make records available under the Freedom of Information Act (FOIA). We urge you to vote NO on the Amash Amendment #71.
We support finding ways to deter or rein in inappropriate political interference in the FOIA process throughout the government, but this proposal goes too far, and in fact would hobble the FOIA process at DHS by prohibiting relevant employees from facilitating FOIA requests.
Under this amendment, the Chief FOIA Officer would not be allowed to make FOIA decisions. Chief FOIA Officers by law must be senior officials at the Assistant Secretary level or higher. This was by design to ensure FOIA operations are given sufficient import within departments and agencies.
In addition, FOIA offices simply would not be able to seek the kind of guidance that is often required from personnel up the chain or in other departments, such as the General Counsel’s office. Further, many FOIA processing employees are uncertain how to apply the discretionary release standard and are reluctant to do so without consulting higher level staff. Often these consultations are critical to compliance with FOIA.
Granting FOIA processors the final say on any release decision also would completely undermine the administrative appellate process, which typically is performed by different agency officials. Often it is only after an administrative appeal and review by staff at a higher level within the agency that withholding decisions are properly reversed. Further, the level and experience of those processing FOIA requests varies widely, suggesting they should not have the final say-so on release decisions. Beyond this, the proposal could have negative consequences for individual career employees who decide to release information that should have been exempted, or refuse to release certain information—not to mention the consequences for the requester, the law, and the American people.
Amendment #71 also could disrupt the chain of command at DHS. Even if it were possible for FOIA officers to make all determinations without consulting with a political appointee, surely the civil servants with whom they consult would report to political appointees. This would undermine the authority of many high-level managers, including the Secretary. The Amash amendment also would prevent the Secretary of DHS from fulfilling her legal obligation to ensure FOIA is properly implemented.
We urge you to oppose Amash Amendment #71.
We hope Rep. Amash and his colleagues on House Oversight and Government Reform will explore other appropriate deterrents, and perhaps consider asking an entity such as the Office of Government Information Services (OGIS), which is reviewing the Inspectors General reports on possible political interference, for recommendations.
We would welcome discussing this further with you or your staff. You may reach us through Angela Canterbury, Director of Public Policy at POGO, at 202-347-1122 or [email protected].
Citizens for Ethics and Responsibility in Washington (CREW)
Project On Government Oversight (POGO)