Open Government (Not?)


Officials from the U.S. Department of Justice

Last month, the National Security Archive awarded the Department of Justice (DOJ) the “Rosemary Award” for Worst Open Government Performance in 2011.

The archive, a national not-for profit founded at George Washington University in 1985 by journalists and scholars, names its annual award after the late President Richard Nixon’s secretary, Rosemary Woods, who famously erased 18 1/2 minutes of a crucial Watergate tape.

The timing of the announcement was awkward.

A few weeks later, Attorney General Eric H. Holder was proudly celebrating the DOJ's commitment to open and transparent government.

“(We have) made meaningful, measurable progress in improving the way our Department – and its partners and counterparts – respond to disclosure requests,” Holder said in a speech Monday inaugurating “Sunshine Week” (March 12-19).

The speech marked the third anniversary of Holder's much-touted 2009 guidelines, which were aimed at expanding and strengthening the Freedom of Information Act (FOIA), signed into law over 50 years ago by then-President Lyndon Baines Johnson.

According to Justice Department figures, the guidelines have produced noteworthy results. Nearly 95 per cent of FOIA requests for records have been granted either in whole or in part, and the backlog of pending requests has dropped by 26 per cent in the past three years.

But open government advocates say a closer look at the details tells a less positive story.

According to a report this month from the FOIA Project, an online resource and information center run by Transactional Records Access Clearinghouse (TRAC), the government has not lived up to one of the key pledges in Holder's 2009 directive: that the DOJ would only support in court agency rejections of access requests for documents that affected national security.

A Sharp Turn

The pledge represented a significant narrowing of the “defensive standards” which agencies could use to deny requests for information. This was a sharp turn from then Attorney General John Ashcroft's 2001 directive saying the DOJ should defend all agency decisions to withhold records unless it lacks sound legal basis.

But TRAC's FOIA Project claims that in fact DOJ lawyers continue to defend government agencies that keep records sealed—and, if anything, have become more aggressive in preventing information from being made public.

The TRAC report notes that for the last two years the DOJ has been stonewalling requests from open government advocates, such as the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights, for a list of cases in which the DOJ has made the decision to stop defending a FOIA denial.

This “sends a strong signal to agencies that they can do anything they want [in terms of FOIA],” claims Susan Long, co-director of the FOIA Project, which also tracks cases filed against the government for withholding information.

The critics point out that DOJ often counts requests as “processed,” and closes them without notifying the requester.

Sometimes, adds Nate Jones, Freedom of Information Coordinator at the National Security Archive (NSA), applicants are refused outright on the grounds that the information is “classified. “

Jones provides some specific examples of requests he made to the FBI that were processed as fulfilled and closed without notifying him or the NSA.

The DOJ dismisses such criticism.

“The Justice Department works closely with its agency clients to ensure that FOIA litigation is handled consistent with the President's memorandum and the Attorney General's guidelines,” said DOJ spokesperson Tracy Russo in an email.

Bumpy Ride

Arguably, the FOIA process has had a bumpy ride since it was enacted in 1966.

The establishment of the principle that government activities should be accessible to citizens was a landmark in the long crusade for open government; and the federal legislation was followed by multiple state versions.

The original FOIA carried nine exemptions allowing agencies to refuse access to information—ranging from national defense to concerns about personal privacy. But the government's commitment to transparency has often seemed to depend on the political climate.

After 9/11, then-President George W. Bush signed an executive order restricting access to presidential records. Subsequently, the Intelligence Authorization Act of 2002 further limited FOIA access.

Although the doors seemingly began to open again with passage of the 2007 Open Government Act, intended to make the FOIA process more user-friendly, national security issues continue to be a major source of agency push-back.

The Department of Justice plays a critical role, as the department charged with defending other government agencies that are sued for withholding information under FOIA. If the DOJ chooses not to take a case, it sends a clear message to the offending agency that its decision to block release of documents is not supportable.

Moreover, the DOJ itself, with oversight of 40 agencies ranging from the FBI to the Department of Homeland Security, is a key repository of the kind of information that open government advocates argue is critical to enable citizens to know what the government is doing in their name.

Shortly after his election, President Barack Obama appeared resolved to make that principle a cornerstone of his government.

“The Freedom of Information Act should be administered with a clear presumption… In the face of doubt, openness prevails …All agencies should adopt a presumption of disclosure,” declared a memorandum issued by Obama on his first day in office.

And it many ways the memorandum has had a positive impact.

FOIA Online

FOIA requests can now be filed online through the government website, which lists all FOIA contacts and information in relevant departments. The DOJ has also started to post information online—such as the Attorney General's schedule and calendar—that requesters used to FOIA.

Town hall meetings and training courses are now regularly scheduled to inform federal government employees of their obligations under FOIA.

The Department of Justice receives over 61,000 FOIA requests a year and the agency works “tirelessly” to process and respond to each request in a timely matter, agency spokesperson Tracy Russo said.

Of the 94.5 percent accepted requests for records, 79 per cent resulted in the release of full documents, according to the government FOIA site.

Agencies, under the law, must respond to FOIA requests within 20 days or the request is considered backlogged.

But the DOJ's claim to have reduced its backlog by 26 per cent (and the number of pending administrative appeals by 41 percent), is “fuzzy math,” according to the National Security Archive's Nate Jones.

He charges, for example, that agencies periodically adjust their pending and backlog statistics so their numbers look higher—thus concealing the real response to FOIA requests.

“Should the Justice Department be telling the truth, or just trying to look good?” asks Jones.

Image vs Substance

Kel McClanahan, executive Director of the Arlington, VA-based National Security Counselors, believes the government is in fact more concerned with image than substance in dealing with FOIA requests.

In February, his organization sued the FBI and CIA, among other named defendants, to provide FOIA requesters with an estimated date of completion of their requests, as required by law.

Meanwhile, in the last eight months alone, McClanahan has filed 11 FOIA requests such as Index Review sheets from the FBI and FOIA investigations from the Office of Special Counsel (full listhere) just on behalf of National Security Counselors. Of these, eight were remanded for further searches (which never actually resulted in more records), and three were affirmed (that is, the appeal of their rejection was denied, and the initial decision was affirmed).

The requests, he claims, are for documents that have no relation to national security and should have easily been granted.

One example: National Security Counselors requested FBI “process slips” relating to FOIA requests to get a clearer picture of how such requests are catalogues. The request was denied and appeal remanded by the Office of Information Policy, which sets the FOIA directives for the DOJ with no thorough explanation.

“How long do you think it will be until they say that everything is exempt (because it is) a law enforcement technique?” asked McClanahan.

According to McClanahan, requests are filed and denied, or remanded, at a higher rate than two or three years ago.

140 Lawsuits

The Virginia organization's lawsuit joins some 140 FOIA suits filed against the government so far this year, according to the FOIA Project—a number that is on track to match the 349 cases filed in 2011.

Litigants range from advocacy groups like the ACLU and the Center on Constitutional Rights in New York to individual citizens and journalists. Many of the suits focus on rejections based on homeland security or law enforcement grounds.

The DOJ, however, says such suits remain a small number, when placed against the thousands of FOIA requests filed each year.

But despite the 2009 guidelines, agencies can still “effectively delay access to sought-after records until public interest in their contents dies down,” the FOIA Project charges on its website.

According to co-director Sue Long, a half-open door to information is hard to square with the Obama Administration's promises of transparency.

“There has been lots of very wonderful rhetoric from Obama (and) there have been areas of improvement,” she says. “But in large areas of (FOIA), it's getting worse.”

Cara Tabachnick is managing editor of The Crime Report. She welcomes comments from readers.

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