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FOIA: A Colossus Under Assault

March 7, 2018

Photos from the National Park Service show 2009, left, at President Obama’s first inauguration on the Mall in Washington and 2017, right, the image of President Trump’s inauguration. From the Washington Post

Just over a year ago, a Freedom of Information Act release by the National Park Service demonstrably proved that the President of the United States was lying about the size of his inauguration crowd.  That he was even elected president was, in part, because his opponent had improperly stored federal records on a personal server as Secretary of State and her agency was systematically and untruthfully stating that “no records” of the Secretary’s emails could be located in response to FOIA requests.

A tiny sampling of the stories made possible by the Freedom of Information Act since then confirms that the law’s impact continues to remain gargantuan.  We now know, thanks to FOIA: how the Drug Enforcement Administration was hamstrung from going after suspicious opiate shipments; how the Department of Justice uses parallel construction to construe illegal searches as legal; how Environmental Administrator Scott Pruitt was personally involved in scrubbing climate change data from his agency’s website; how Afghanistan and Iraq wars proceeded day by day from the Secretary of Defense’s desk; how investigations into suspicious deaths of Russians connected to Vladimir Putin on American soil are being conducted; how the Treasury Department justified its claim that recent tax cuts will generate $1.8 trillion in revenue (in just one page); how the rushed construction of a border wall would negatively impact one retirement community and three wildlife areas; and thousands more important local and national stories.

Far from being crippled and ineffective, as some have claimed, FOIA remains a colossus.  It continues to give citizens a fighting chance to force their government to release documents that it would rather hide.

In a metaphorical example of the state of FOIA, the EPA recently redacted a document using duct tape. Via Chris Horner

But we would be lying if we did not admit that the Freedom of Information Act has been chipped away at and weakened –often by the very people and agencies supposedly charged with enforcing it– for decades.  Some fixes to this will be relatively easy; others are needed, but will not likely be made in the foreseeable future.

Despite some incredibly transformative transparency initiates, the Obama administration was, for the most part, anti-FOIA.  It was more than happy to work to efficiently publish the government information that it wanted out, but generally was lukewarm at best in helping citizens get what they wanted released.

The Obama DOJ quietly worked to weaken the 2016 FOIA Improvement Act legislation.  Unlike President Clinton, and despite repeated requests from open government advocates, President Obama’s DOJ refused to conduct a FOIA litigation review.  This means that despite his promises of openness, his DOJ lawyers continued the W. Bush practice of fighting the release of information via FOIA lawsuits as stridently as possible, and still submitted the same bad-faith, boilerplate arguments to judges on why the republic would be threatened if, say, a 31-year-old history of the Bay of Pigs invasion was released.  (Spoiler alert: after DOJ lawyers actually argued this and won, Congress changed the law to forbid it, the document was then released, and the republic did not collapse.)

The oldest pending FOIA request in the federal government is at the US National Archives. NARA state that it cannot process this request itself and is must wait for the originating agency to do so.

Today, the same structural problems of FOIA certainly still exist and new threats are emerging.  Delays are the primary bane of most FOIA requesters.  According to the most recent available data, the oldest FOIA request in the federal government is twenty-five years old and the average processing time request for a “complex request” (40 percent are deemed this) to the Department of Defense is 166 days.  It is certainly not uncommon for requests to take multiple years to complete.

Always appeal, especially “no document” responses.. Via DOJ.

Another continuing structural problem is agency’s ongoing overuse of exemptions to withhold information.  Again according to the most recently available data, only 23.1 percent of all FOIA requests are granted in full to requesters.  36.8 percent are “released in part,” but this is not a useful statistic as it could mean that one word is redacted or that one word (or sometimes less, actually) is released.  20.1 percent of all requests return “no document” responses, but as the State Department email fiasco showed, agency claims of having no records are often wrong.  Less than three percent of all FOIAs are appealed, but within that small sample, Associated Press statistics show that in nearly 33 percent of appeals, the agency improperly withheld information the first time around.  There is a staggering amount of information requested under FOIA that agencies should have released but didn’t.

A “partial release” via FOIA Mapper.

As the law was written, there are nine FOIA exemptions.  In reality, there are closer to 250, including one about watermelon production data, because Exemption Three allows congress to pass new “statutory exemptions.”  Of these 250 exemptions (and more and more continue to be introduced), some are used and abused more than others.  Statutory exemptions give the DIA, NSA, and other DOD components far more leeway to hide information than other agencies.  In 1984, Congress made its most tremendous error tremendous related to FOIA, passing the “CIA Information Act” which made it so that the CIA is no longer even required to search most of its records in response to FOIAs.  To get this gaping cutout, the CIA promised  congress that it would increase the rate of release of its records of historical interest, a promise that it has broken.

“Normal” exemptions one and seven, used to hide national security and law enforcement information, are often used to withhold information that is in the public interest to release.  Just this week, for example, the DOD announced that it would now be classifying previously public information about Missile Defense tests.  The upshot: we will now have a harder time knowing if the tests of our extremely expensive Missile Defense Program are successes or failures.

Wasting government time and funding to redact this? Yes, I agree with the marginalia.

But the exemption that is most urgently due for a rewrite is the Exemption Five, the “withhold it because you want to” exemption.  The 2016 FOIA amendments made it slightly harder for agencies to use Exemption Five; they now have to show how release of this information could be reasonably expected to cause harm to agency processes, and cannot use it to withhold documents that are older than twenty-five years (how the National Security Archive finally got the Bay of Pigs history released).  But because of the exemption’s broad wording (even the DOJ concedes it has “opaque language”), any inter or intra agency communication can be withheld under it.  Most recently, agencies’ have been citing Exemption Five to withhold their Agency Reform Plans from the public.   In a bittersweet development, the House unanimously passed language that would curtail abuse of this exemption in its version of the 2016 FOIA bill, but due to parliamentary maneuverings, it was left out of the Senate bill that eventually became law.  Any legislator wanting to make her mark in the world of transparency should be attempting to attach these few lines of legislation which have already passed the House unanimously onto every bill.

Time for an update. The OMB Guidance on FOIA fees was written before the internet existed and is missing a key word.

Other doable, realistic reforms that could improve FOIA include finally acting on a recommendation made two years ago by the Federal FOIA Advisory committee (I am a member) and Archivist of the United States to update OMB’s FOIA Fee guidance, which was written before the advent of email (and reads like it!  It is even missing one key word).  Updated guidance would ameliorate the key problems of the use of “fee bullying” by agencies to deter requesters and would lock in the legislative reforms that prohibit agencies from charging most fees if they miss their deadlines.

Hopefully government agencies will move more quickly to implement the new slate of recommendations passed by the Advisory Committee.  This action is urgently needed.  Recently the National Park Service removed its entire collection of National Parks Climate Actions Plans, by speciously claiming that it was not compliant with the Rehabilitation Act, which requires that documents are accessible to those with disabilities.  But as the next FOIA Advisory Committee recommendations clearly state, Interior could have and should have left these valuable public releases online.

The recommendations also include instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches—the key reason behind the years and decades-long processing delays.

Finally, it is important that we recognize the largest structural problem of the Freedom of Information Act that is not likely to be fixed in the foreseeable future: the fact that no one is holding agencies accountable for not following the law.

99 percent of federal agencies missed the memo, apparently.

Here is a staggering example: in 2008 the President of the United States instructed every federal agency to reduce its FOIA backlog by ten percent every year.  How many agencies followed this presidential order?  Just a single one: the Department of Health and Human Services.  If agencies had followed this presidential instruction, most if not all of FOIA backlogs would be eliminated and requesters could get their documents in a timely fashion.  But as ninety-nine percent of agencies disobeyed a presidential instruction, no one from the White House, Congress, the DOJ Office of Information Policy, or the FOIA Ombuds Office chastised or prodded agencies, or analyzed why the president’s instruction was not followed.

FOIA offices are quick to blame their worsening production on lack of resources, and this is certainly true… to an extent.  It is also due to antiquated workflow processes, insufficient use of technology, the continued purchase of agency software that is not compatible with FOIA searches and production needs, an unwillingness to release information for the sake of efficiency, and –perhaps most fundamentally– a lack of respect for the Freedom of Information Act by agency heads and other agency employees.

Take for example the recent case of the Department of State.  Secretary Rex Tillerson has begun an all hands on deck effort to reduce the State Department’s abysmal FOIA backlog (Former H.W. Secretary James Baker also did this… but the backlog re-grew in the interim because State did not establish efficient workflow and staffing practices).  We are watching the results of this “FOIA Surge” closely, but are cautiously optimistic that State is doing the right thing and is now releasing more information to more people more quickly.  State Department employees, however, were not so supportive of this effort to comply with the law.  Some went on record calling the FOIA office “Siberia,” and described their new FOIA work as beneath them, even though current DOJ instructions clearly state “FOIA is everyone’s responsibility.”

In the face of this and other public bashing of FOIA officers, the FOIA Ombuds Office and DOJ OIP have remained largely silent.  The underlying reason for this, I believe, is an aversion for employees of one executive branch agency to criticize another agency.  This is why there is no “FOIA beat cop” defending FOIA processors, condemning bad FOIA denials, lobbying for increased FOIA funding, or demanding plans to reduce FOIA delays and backlogs.  For FOIA to reach its potential there does need to be an effective FOIA enforcer, notwithstanding concerns over protecting bureaucratic turf.

Certainly, the courts are a mechanism to do this for individual cases. In the absence of DOJ OIP or OGIS’s ability to force agencies to improve, FOIA litigation is skyrocketing.  The downside of this is that the courts are beginning to clog up and that only relatively wealthy individuals and organizations can afford to turn to judges for justice for their FOIA requests.  The upside is that judges are becoming more active in releasing information and more and more are questioning dubious DOJ lawyer claims of the threat of openness.  People are suing because it works; more information is coming out more quickly thanks to the courts.  More pattern and practice rulings by judges (similar to the recent one won by MuckRock forcing the CIA to begin searching its emails in responses to requests) will continue to improve FOIA production.

But the courts cannot be relied upon to fix how FOIA is administered.  Ultimately –and this will be a heavy lift that will not likely occur soon– the FOIA oversight mechanism of the executive branch needs to be shaken up, made stronger, and more activist.  One possible solution is a model similar to the Council of Inspectors General on Integrity and Efficiency.  Why, after all, are Inspectors General usually feared and FOIA officers usually ignored or scoffed at?  Because, I believe, IGs have an oversight entity with clout backing them up so that they can receive the documents they require, meet their deadlines, and independently follow their charge as described by the law.

LBJ’s edits to his signing statement authored by Bill Moyers.

The United States Freedom of Information Act was the first modern access to information law.  Since it was signed into law by President Lyndon Baines Johnson on July 4, 1966, over one hundred countries have passed access to information laws of their own; some countries have far surpassed the US in providing access to information to their citizens.  The importance of the law should not be understated.  It is a colossus that makes national and local headlines daily, it proves that presidents lie, it tells citizens what their military and intelligence agencies are doing in their name.  But it is exactly because of FOIA’s success and potential that those who prefer secrecy attempt to weaken it both by overt attacks and by active neglect.  Despite this, I am optimistic about FOIA’s future.  It is a uniquely American law that provides us the power to force our government to disclose our secrets.  It will survive, but will it thrive?

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