FOIA: Honored in the Breach!

By William Fisher Remember those heady days in January 2009? Obama’s first week as President. We Dems were so disgusted with eight years of George Bush’s “secret governance” that we were ready to believe that anything the Obama Administration did could only be a major improvement. I remember being particularly joyous that one of our new President’s first-day-in-office pledges was to fulfill his campaign promise to lead the “most transparent administration in history.” He said: “My Administration is committed to creating an unprecedented level of openness in Government.” While laying out principles he wished to see his agencies adopt in the proceeding months, he ordered federal officials to err on the side of openness. The President wrote that FOIA should be “administered with a clear presumption: In the face of doubt, openness prevails.” That was to be the default position. Following through on the President’s memorandum, Obama’s new attorney general, Eric Holder, issued a directive to emphasize the importance of the FOIA law’s purpose and “to ensure that it is realized in practice.” Holder ordered that unless there was a compelling state interest in secrecy, our citizenry was entitled to know what their government was up to. It was to be a real change in mind set. The public was not the enemy! Like millions of others, I expected full disclosure of Bush’s secret wiretapping, torture of prisoners, the CIA’S secret prisons and its destruction of interrogation videotapes. I also expected an end to the use of the “state secrets privilege” as a way of keeping embarrassing cases out of court. Well, all I can say is that I, having worked in the Kennedy Administration, should have known better. A lot better. I should have known that many government employees seem to have a predilection for secrecy. Maybe it comes from Bacon’s dictum that “knowledge is power.” Or maybe they think it’s just safer not to call attention to oneself. Whatever the reasons, I sure wasn’t ready for what came next. Since Obama’s historic first day in office, numerous studies and surveys have been carried out by researchers in and out of government. The most recentof these has been published by TRAC – the Transactional Records Access Clearing House, a research unit at Syracuse University. Its findings are not pretty. The Attorney General’s memorandum said the Department of Justice would “defend a denial of a FOIA request only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law.” The FOIA law has been amended many times and it appears that most of the amendments have tilted toward finding more and more reasons NOT to disclose. Even a partial list of exclusions presents information seekers with a formidable task. The TRAC research considered whether or not a key component of that March 2009 directive which set forth new “defensive standards” for FOIA litigation has been obeyed. Yet here are two shockers: TRAC says available evidence indicates that no affirmative steps needed to implement the new defensive standards were ever taken. Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper. Furthermore, TRAC and many others charge that, after three years, the Freedom of Information Act – the basic building block of government transparency -- is still in shackles. According to Trevor Timm of the Electronic Frontier Foundation (EFF), the Obama Administration “has been just as secretive—if not more so—than his predecessors, and the Freedom of Information Act (FOIA) has become the prime example of his administration’s lack of progress.” Similarly, TRAC found little evidence that these new standards are actually being followed. In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold. Under the Freedom of Information Act, if an agency does not provide records requested under FOIA, the requestor can file an action in federal court seeking a court order to compel their disclosure. When an agency’s withholding is challenged in court, attorneys from the Justice Department are typically called upon to defend the agency’s action. Therefore the standards used by these attorneys in determining which withholding actions will be defended, and which will not, send a powerful signal to federal agency officials and FOIA staff on the extent to which the agency will have a free hand in withholding government records. In addition, whatever the ultimate decision of the courts, the sclerotic pace of federal litigation means that the decision to defend an agency’s withholding effectively postpones the need to turn over documents to the public for many years. Thus, agencies can use this tactic to effectively delay access to sought-after records until public interest in their contents dies down. And delay they have. In 1997, a request was made by The New York Times under the FOIA. It received a response in 2012. The response was sent by Federal Express, Priority Overnight. The National Archives and Records Administration says its oldest request is from September 1992, asking for information from the White House Office of Science and Technology about nuclear weapons safeguards, testing and disarmament negotiations. The documents requested are from 1961. Another request from 1992 is for State Department documents relating to nuclear weapons accidents in 1958 through 1960. A third asked, in 1993, for documents dating to the American occupation of Italy after World War II, specifically about the Sicilian Mafia. The National Security Archive, a non-governmental non-profit group based in Washington that is a heavy user of the Freedom of Information Act, reported last July 4, on the 45th anniversary of President Lyndon B. Johnson’s signing of the law, on some older cases that were still open. Those included a 1995 request for information on Pakistani surface-to-air missiles and a 1998 request to the George Bush Presidential Library for documents relating to the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The bombing happened in 1988. The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009. And just this year, in a FOIA case that TRAC filed, and that is now before the Second Circuit Court of Appeals, the Justice Department attorney argued that the government was entitled to withhold the names of many political appointees on government employment rolls — extending even to withholding the name of the head of a federal agency — even though names of federal employees had been a matter of public record since 1816. In that same case, the DOJ attorney also argued that data compiled for statistical purposes containing the county or city where federal workers were located was exempt from disclosure on privacy grounds, whether or not it was possible to associate the data with any identifiable individual. The White House described Obama’s directive as "historic," but the Office of Management and Budget still has not responded to the AP's request under the Freedom of Information Act to review internal e-mails and other documents related to that effort. For example, the Federal Aviation Administration cited the “deliberative process exemption “ --- one of the most frequently used exclusions -- in refusing the AP's request for internal memos on its decisions about data showing collisions between airplanes and birds. The FAA initially tried to withhold the bird-strike database from the public, but later released it under pressure. It is ironic that the “deliberative process exemption” -- which allows the government to withhold documents dealing with its internal decision making process -- is one that Obama explicitly told the agencies not to use. Yet in Obama’s first year in office, the use of the “deliberative process exemption” rose from 47,395 times in 2008 to 70,779 times in 2009. This was the exemption claimed by the Federal Aviation Administration (FAA) to withhold nearly all records about its approval for Air Force One to fly over New York City for publicity shots – a flight that prompted fears in the city of a Sept. 11-style attack. It also withheld internal communications during the aftermath of the public relations gaffe. Other exemptions cover information on national defense and foreign relations, internal agency rules and practices, trade secrets, personal privacy, law enforcement proceedings, supervision of financial institutions and geological information on wells. One, known as Exemption 3, covers dozens of types of information that Congress shielded from disclosure when passing other laws. In provisions often vaguely worded and buried deep in legislation, Congress has granted an array of special protection over the years: information related to grand jury investigations, additives in cigarettes, juvenile arrest records, the identities of people applying restricted-use pesticides to their crops, and the locations of historically significant caves. All can be legally withheld from the public. The federal government cited Exemption 3 protections to withhold information at least 14,442 times in the last budget year, compared with at least 13,599 in the previous one. Journalists have been among the most consistent users of FOIA requests. But the obstacles, and the time, money and people-power needed to surmount them, have shown signs of discouraging this constituency. Trevor Timm of the EFF reports that the Associated Press looked at the administration’s commitment to transparency in 2010 and concluded Obama was using FOIA exemptions to withhold information from requesters more than Bush did in his final year, despite receiving fewer overall requests. Worse, more than a year after Obama and Holder’s memos, a National Security Archive study found “less than one-third of the 90 federal agencies that process such FOIA requests have made significant changes in their procedures.” Even FOIA requests on transparency were held up: An Associated Press study concluded that the bottom line was that, one year into its promise of greater government transparency, the Obama administration was more often citing exceptions to the nation's open records law to withhold federal records even as the number of requests for information declined. Obama's directive appears to have been widely ignored.Major agencies cited the “deliberative” exemption at least 70,779 times during the 2009 budget year, up from 47,395 times during President George W. Bush's final full budget year, according to annual reports filed by federal agencies. Obama was president for nine months in the 2009 period. One of the frustrating realities about the FOIA process is the enormous backlog of requests government agencies have to contend with, which means many months or years could pass before a request is finally processed and a response received.. Court calendars jam-packed with FOIA cases are also having the effect of putting civil trials on hold, sometimes for years. Much of the Obama administration's early effort seems to have been aimed at clearing out this backlog of old cases: The number of requests still waiting past deadlines spelled out in the open-records law fell from 124,019 in budget year 2008 to 67,764 at the end of the most recent budget year. There is no way to tell whether people whose cases were closed ultimately received the information they sought. The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request. The administration has stalled even over records about its own efforts to be more transparent. The AP is still waiting – after months – for records it requested about the White House's "Open Government Directive," rules it issued in December directing every agency to take immediate, specific steps to open their operations up to the public. The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., was so concerned about what he called "exemption creep" that last year he successfully pressed for a new law that requires exemptions to be "clear and unambiguous." Recently, Attorney General Eric Holder said the government is making progress. In a speech at the start of Sunshine Week, when news organizations promote open government and freedom of information, Holder noted that the Justice Department turned over all documents in information requests in more than 1,000 more cases than it had the previous year. "Put simply, I asked that we make openness the default, not the exception," Holder said. "I'm pleased to report that the disturbing 2008 trend – a reduction in this department's rate of disclosures – has been completely reversed. While we aren't where we need to be just yet, we're certainly on the right path." Scott Hodes, an attorney in private practice who specializes in FOIA litigation, was asked whether there was an effort to change, Hodes was blunt, saying that he believes DOJ attorneys handling FOIA cases don’t consider the documents at the center of a FOIA denial case, and maintain a policy of always defending the cases. “They will still pretty much defend a ham sandwich in a FOIA exemption case,” Hodes told TRAC. The reason for this, Hodes said, was because there was no backing for a change from higher up in the agency that provided the support or infrastructure for attorneys handling cases to decide not to defend a case. “I think the important thing is that there has been no training, specifically for FOIA litigators. There’s no guidelines — there isn’t even discussion of when they should release something. Quite frankly, they’re not serious about it.” If Hodes has found no change, and instead a stolid insistence on defending cases no matter what, others have seen the opposite — an increased aggressiveness in defending cases. Jason Aldrich, a staff attorney at Judicial Watch who worked on two lawsuits that were examined by TRAC to see if they were affected by the new policy (neither were), said that in 12 years of litigating FOIA-related cases, extending back to the Clinton administration, he has seen no signs that DOJ attorneys are less likely to defend a case. “I’m not really seeing any additional openness or willingness to exercise discretion, if anything people are just hunkering down, especially anything that looks like it might be remotely political,” he told TRAC. The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009, which ended last October. The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request. Proponents of “smaller, leaner government” contend that there are simply to many people involved in the FOIA process. But others contend that fewer hands would only make the delays longer. It was back in 1966 that Lyndon Johnson signed the Freedom of Information Act into law, driven by the indefatigable Bill Moyers, his press secretary. Unlike Johnson’s much-publicized signing of the Civil Rights Bill, Wikipedia tells us that he had such mixed feelings about the FOIA legislation that he refused to hold any kind of ceremony that would attract the media's attention. His fear was that opening the government's files to the masses might result in the accidental or intentional revelation of national secrets. Seven years later, Rosemary Woods, President Nixon’s secretary, was reviewing a key Watergate tape, and erased 18.5 minutes of conversation. Wags in Washington, DC, bestowed on her a “virtual” award for Worst Open Government Performance. The “honor” became an annual capitol chuckle. The winner in 2011 was – wait for it – the US Departmentof Justice.