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DOJ Needs to do a “Much, Much Better Job” on FOIA and “How Can You Say That’s Compliance?” Tough Bipartisan Questions on Gov-Wide FOIA Performance at Sunshine Week Hearing: FRINFORMSUM 3/14/2019

March 14, 2019

“How Can You Say That’s Compliance?”

This year’s House Committee on Oversight and Reform Sunshine Week hearing was a strong showing of bipartisan support for FOIA and a desire to address the shortcomings in its administration.

Rep. Cummings receiving his well-deserved award for fighting for the public’s right to know.

In his opening remarks, Chairman Elijah Cummings (D-Md.) pinned deserved attention on the Justice Department, which is responsible for “encouraging” government-wide FOIA compliance and defends agencies in court when sued under the statute. Rep. Cummings said, “In my opinion, DOJ needs to do a much, much better job because we are seeing far too much information being delayed and even withheld” (he expressed the same sentiment when receiving the 2019 Sunshine in Government Award at the National FOI Day Conference).

Cummings also called out the DOJ’s Chief FOIA Officer, Jesse Panuccio, for saying of FOIA at the department’s Sunshine Week KickOff Event, “Unfortunately, as with everything in life, there are excesses, and those excesses strain the system. Some groups have turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking.” Cummings noted this makes it seem the agency “is framing requests for information as obstructions.” (For a more detailed account of the DOJ’s long-running – think 50 years –  attempt to undermine FOIA, be sure to read my colleague Nate Jones’ excellent Washington Post article.)

The witnesses at the hearing were the Director of the Justice Department’s Office of Information Policy, Melanie Pustay, Acting Director of the National FOIA Office for the Environmental Protection Agency, Tim Epp, and the Acting Deputy Chief FOIA Officer from the Department of the Interior, Rachel Spector. None had an easy day of it.

Pustay reiterated the Justice Department’s skewed statistics during her testimony – to sometimes withering critique. Rep. Mark Meadows (R-NC) grilled Pustay on agencies’ inability to respond to FOIA requests within the statutory timeframe, saying “we continue to miss the statute.” Pustay hedged and “disagreed with the premise” of his question about agency response times, to which Meadows said, “that was supposed to be a softball question.”

The Archive audit charts agencies oldest request, their backlog, and average processing time for “complex” requests.

The National Security Archive’s most recent FOIA audit provides a visual breakdown of just how much FOIA delays continue unabated – and points out that most agencies get more favorable reporting numbers by labeling normal requests as “complex.” Listen carefully to the House hearing and you’ll notice agencies do their best to discuss the processing times and release rates only for “simple” FOIAs. The difference between simple and complex requests can be arbitrary; one agency – the Defense Intelligence Agency – claims that only two percent of its FOIA requests are simple. Focusing only on requests that agencies self-define as simple paints a distorted picture of overall FOIA processing. (Senator Patrick Leahy (D-VT) referred to our audit during his Sunshine Week remarks at the National Archives, saying “we’d be fooling ourselves by failing to acknowledge the challenges facing FOIA and transparency in the months and years ahead.” Sen. Cornyn (R-TX) also spoke, saying sharing information is a responsibility, not a burden.)

Another hearing highlight came from Rep. Debbie Wasserman Schultz (D-FL) as she grilled Interior’s Rachel Spector. Rep. Wasserman Schultz sought more information on whether the Interior Department made a conscious effort to delay or deny politically-sensitive FOIA requests, and presented a February 28 memo instructing just that – including adding a layer of review for officials who had left the department within the last three months – seemingly referring to former Secretary Zinke. Wasserman Schultz asked if there was any reason for that arbitrary timeframe to be included in the memo other than to protect the former secretary, to which Spector said yes, though did not clearly state why. The Congresswoman said Spector’s answers were “not passing the straight face test.” (Interestingly, Ms. Spector also testified that Interior “reached out” to the FBI for help crafting its notorious proposed FOIA regulations.)

Large Atlantic Drilling Proposal Imminent

At the same time his agency’s Chief FOIA Officer was struggling to answer the House Committee’s tough questions, the Guardian broke a story revealing that the Interior Department’s Assistant Secretary for Land and Minerals Management, Joe Balash, told a group of fossil fuel executives that “the Trump administration will soon issue a proposal making large portions of the Atlantic available for oil and gas development.” FOIA-released records show Balash further noting that it was “easier to work on such priorities because Donald Trump is skilled at sowing ‘absolutely thrilling’ distractions.”

Another recent FOIA request shows that Interior’s Bureau of Safety and Environmental Enforcement issued 1,700 waivers to an Obama-era offshore oil drilling rule that was issued in the wake of 2010’s Deepwater Horizon oil spill disaster.

FBI Must Search for Records on Impersonating Filmmakers

The FBI must search for and review documents on the Bureau’s “impersonation of documentary filmmakers during investigations” thanks to a FOIA lawsuit brought by the Reporters Committee for the Freedom of the Press (RCFP). RCFP filed the initial FOIA request after learning the bureau impersonated documentary filmmakers as part of a ruse to interview rancher Cliven Bundy and his family during the 2014 standoff between the Bundys and the Bureau of Land Management; the request sought records related to the incident and the FBI’s practice of impersonating film crews more broadly. The FBI issued a Glomar response – refusing to confirm or deny the existence of records – pursuant to FOIA’s Exemption 7(E), which concerns law enforcement techniques, and the Justice Department’s Jessie K. Liu, Daniel F. Van Horn, and Johnny H. Walker argued the same in court. US. District Court Judge Rudolph Contreras for the D.C. Circuit ruled in favor of the Plaintiff, saying “The Court does not see how disclosing whether any records exist could reduce or nullify the technique’s effectiveness.”

This is not the first time the FBI has been caught impersonating a journalist. It was widely reported that in 2007 the FBI ignored its own rules impersonating an AP journalist, and then deemed the rule-breaking reasonable when it came to light thanks to a FOIA lawsuit brought by RCFP and the AP. The bizarre story began in 2007 when the FBI created a fake story on bomb threats made at a Seattle-area high school, attributed it to the AP, and then sent it in a private MySpace message to the student suspected of making the threats against the school. “By clicking on the link, the suspect unwittingly downloaded a piece of malware, a computer bug that enabled agents to identify his Internet protocol address.” Documents obtained from the suit include details on the “sensitive circumstances” that must be met for an undercover agent to impersonate a member of the news media.

The FBI is not the only law enforcement agency that impersonates people on social media in controversial ways to further its investigations. In 2014 a Drug Enforcement Agency (DEA) agent impersonated a young woman on Facebook, posted racy photos of her and pictures of her underage son and niece on the social media site, all as part of a drug investigation.

Don’t burn down the Archives!

A recent post on the National Declassification Center’s blog by staff member David Fort has some great information on the center’s process for reviewing records for declassification once they’ve been accessioned to NARA, as well as the office’s FOIA process. As Fort notes, “The two main challenges our office faces are first, the fact that we do not have declassification authority, so that we are very dependent upon other agencies in processing the FOIA requests in a timely manner and providing us with instructions on how to handle the document.  Our second challenge is the habit agency reviewers maintain in looking at a historical document through the lens of today’s national security environment, which leads to unnecessary retention of national security classifications.”

Read to the end to learn about the strangest thing Fort has discovered in his work – a find that required a call to the local police department!

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