A government-wide audit done by the independent non-governmental National Security Archive indicates a majority of federal agencies have not updated their Freedom of Information Act (FOIA) regulations to comply with legislation, which became law in 2007, or President Barack Obama and Attorney General Eric Holder’s policy changes in 2009.
Thomas Blanton, the director of the National Security Archive, appeared before the Senate Judiciary Committee for a hearing on “open government” five years after the passage of the OPEN Government Act of 2007, which aimed to strengthen FOIA and created a 20-day period of compliance for FOIA requests.
Blanton shared the results of the Archive’s audit in a statement provided to the Committee:
Our audit shows that 53 out of 100 federal agencies have not changed their Freedom of Information regulations to meet the requirements Congress put into law with the OPEN Government Act of 2007. As you well know, that legislation prohibited agencies from charging processing fees if they missed the response deadlines, ordered agencies to cooperate with the new FOIA ombuds Office of Government Information Services, and required a number of other reforms and reporting changes.I am sure it is no consolation to you, but the agencies are ignoring the President’s orders too, not just yours.
Our audit found an even larger number of agencies – 59 out of 100 – failed to update their FOIA regulations after the 2009 Obama-Holder guidance on Freedom of Information. Announced by the President on his first day in office and followed up by the Attorney General in less than 60 days with a new memorandum intended to overturn restrictive Bush administration practices, that guidance declared a “presumption of disclosure,” encouraged discretionary releases even when the information might technically be covered by an exemption, required a “foreseeable harm” test for withholding, ordered proactive online publication of records of greatest interest to the public, and told agencies to remove “unnecessary bureaucratic hurdles.”
Blanton also pointed out the Justice Department is actively litigating against the OPEN Government Act. In the case of Citizens for Responsibility and Ethics in Washington (CREW) versus the Federal Election Commission, it has taken the position that “an agency’s postcard acknowledgement of a FOIA request is enough to qualify as a ‘determination’ under the law.” It is one of the few “actual enforcement procedures” in the law and the Justice Department “wants to scuttle it.” Should a court agree, the law’s provision that “agencies cannot charge fees if they respond in an untimely fashion” will turn into a “dead letter.”
“We requesters will get our postcards but not the government’s documents, and agencies will keep threatening us with fees to make us go away,” Blanton argued. That is not what Congress intended.
The Justice Department, according to Blanton, has not in any case since 2009 “changed its litigation posture and refused to defend an
agency withholding decision.” That means since 2009, whenever requester have challenged agency refusals to provide responsive documents, the Justice Department has come to the aid of that agency.
This is where the policy change called for by Holder failed. Blanton told the Committee it “did not order agencies to revise their regulations to comply with the new standards.” It did not order a “review of all pending FOIA litigation to apply the new standards, settle cases and disclose records” either. “In this sense, the Holder memo failed even to match the requirements that President Clinton’s Attorney General, Janet Reno, put into her FOIA memorandum in 1993.” (Blanton blasted the Justice Department during the hearing. To watch, go to the 1:49:00 mark of the video posted by the Committee.)
The Archive has conducted twelve FOIA audits since 2002. The results of the most recent audit can be viewed here.
The major federal agencies that are delinquent and not adhering to the law include agencies that are most likely to receive FOIA requests: the Defense Department, the State Department, the Department of Homeland Security, the CIA, the Justice Department, the Energy Department, the Commerce Department, the Labor Department, the Office of the Director of National Intelligence, etc.
Around 603,000 FOIA requests were submitted last year, about a five percent increase. According to the Associated Press, “When the government withheld or censored records, it cited exceptions built into the law to avoid turning over materials more than 479,000 times, a roughly 22 percent increase over the previous year.” It cited “national security to withhold information at least 5,223 times—a jump from over 4,243 such cases in 2011 and 3,805 cases in Obama’s first year in office.” The CIA became “more secretive” and “nearly 60 percent of 3,586 requests for files were withheld or censored” (compared with 49 percent in 2011).
There needs to be more overhaul and reform of the entire FOIA process. Members of Congress recognize this, and that is why Rep. Darrell Issa (R-CA) and Rep. Elijah Cummings (D-MD) have drafted legislation.
The Obama administration likes to claim it is the “most transparent administration ever.” But, do Americans know that until December 2012 all agency regulations for processing FOIA requests were not online, where by law they are to be posted?
The National Security Archive had to file FOIA requests for FOIA regulations. They spent months, longer than expected, to create a “first-ever complete listing” of agency FOIA rules.
When this is the state of the process which is one of the only mechanisms for protecting the public’s right to know, no presidential administration should be able to make the claim they are the “most transparent administration ever” without hearing laughs. Such brazen sloganeering deserves to be mocked and harshly criticized until abuses of power come, especially abuses related to the FOIA process, come to an end.
For more on the “most transparent administration ever,” a rundown of how the Obama administration has fought to conceal national security policies from the public can be read here.