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Bipartisan Consensus at FOIA Hearing: DOJ Not Doing Enough on FOIA: FRINFORMSUM 3/31/2022

March 31, 2022

Senate Judiciary FOIA Hearing Highlights DOJ’s Poor Performance Encouraging FOIA Compliance

Senator Patrick Leahy presides over the FOIA hearing

Longtime FOIA champion Senator Patrick Leahy presided over his last Freedom of Information Act (FOIA) hearing this week, and he made it count. The Senate Judiciary Committee’s first FOIA hearing since 2018, The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century, pulled no punches. Republican and Democratic senators alike appeared skeptical of the Department of Justice representative’s explanations for lackluster government-wide FOIA performance. They repeatedly pressed Bobby Talebian, the DOJ’s Office of Information Policy director, on what specific steps the DOJ was taking to improve FOIA, but Talebian provided few concrete explanations, instead preferring to stick with OIP’s perennial stance of rose-colored-glasses obfuscation.  

The main issues discussed include:

  • Senator Leahy expressed concern over Attorney General Merrick Garland’s recent FOIA memo, which was vague and somewhat noncommittal, and pressed Talebian on 1) what specific steps the DOJ would take to track agency’s progress complying with the law, and 2) what DOJ would do with agencies that flout FOIA. Talebian offered no concrete answers, only reiterating that agencies “aren’t necessarily delinquent” in following the law, including the most recent 2016 amendments, a claim that is patently absurd. This leaves the impression that the DOJ will continue, among other things, representing agencies in court, even when they are clearly acting in bad faith. Senator Leahy appeared unimpressed, noting that he wanted candor from the witnesses. 
  • Senator Chuck Grassley pointedly asked Talebian why it took Attorney General Merrick Garland over a year to issue a memorandum on FOIA, noting that it gave the impression that the Biden administration was not prioritizing transparency. He also stated that federal agencies seem inclined “to disclose as little as possible.” Talebian could not answer directly, stating instead that his office continued to work with agencies to improve their FOIA performance, while offering no specifics on how beyond providing additional training and guidance. 
  • Senator Grassley also asked Talebian about the status of the Obama-era “release to one, release to all” policy; Talebian emphasized that while there was a pilot-program studying the policy, that proactive disclosure is key. However proactive disclosure is more than that, it is the law, and a quick look at many agency FOIA websites shows that it is not being followed.
  • Senator Dick Durbin asked Talebian what accounted for the increase in FOIA litigation. Talebian responded that it was in large part the result of FOIA requests for records that are of high public interest. The key here is that agency records that are likely to be subject to multiple FOIA requests and that are identified as being of likely public interest are among the categories of records required to be published proactively – without requiring requesters to file a request in the first place, much less file a lawsuit. Talebian’s answer only underscores the extent to which agencies are not currently following the law as written, and how poor a job OIP is doing “encouraging” them to follow it. 
  • Senator Durbin also directly addressed the exponential growth in electronic records and asked Talebian if the federal government was seriously considering using artificial intelligence to make searching and processing more manageable. Talebian said, “Certainly, we’re definitely looking at advanced technology, including artificial intelligence to help us with the search and maybe even the processing of records.”
  • Senator Dianne Feinstein was similarly direct, telling Talebian that OIP’s efforts “have not done it”.  She also said, “My conclusion from this is: there is a big problem.”
  • Senator Sheldon Whitehouse had a terrific line of questioning, noting that OIP’s stance on congressional access to records under FOIA impacted its ability to conduct oversight. Senator Whitehouse was particularly frustrated about access to a DOJ Office of Legal Counsel opinion under FOIA; the OLC memo in question (more on OLC memos in general in the next section) concerns the Justice Department’s rationale why sitting presidents cannot be criminally prosecuted. Talebian, after repeated questions, acknowledged that his office was involved in the decision to appeal the U.S. District Court ruling that the OLC memo be released, but refused to provide further information.
  • Senator Jon Ossoff followed this line of questioning, repeatedly asking if the DOJ was considering updating its 1984 interpretation of congressional access under the FOIA. Talebian said he would circle back and provide an answer to the committee at a later date. Senator Ossoff also said that the difference between what the law requires and how agencies are performing is “massive”.

Talebian repeated many of OIP’s worn-out talking points throughout the hearing, and at times seemed to imply that requesters are more responsible for growing backlogs and long wait-times than FOIA offices, noting the growing number of requests being filed are ones that agencies deem complex. This argument is wrong for two major reasons: an agency’s inability (whether by intent or design) to follow the law by searching for and processing FOIA requests is not the requester’s burden; and there is no concrete standard by which agencies categorize requests as simple or complex. One agency, the Defense Intelligence Agency, labels 98% percent of its requests as complex. This cannot be accurate, and more likely reflects that the DIA has placed these requests in the complex queue to justify long processing times. In short, an agency’s determination of a request as complex should be taken with a grain of salt. 

Talebian also cited progress towards the National FOIA Portal, which was mandated by the 2016 FOIA amendments to allow the public to file a request to any agency from a single website, as a success. This is a spurious claim; the portal for many years has functioned as a glorified FOIA directory, referring requesters back to individual agency FOIA websites. Even now, many agencies – particularly those with classified systems like the CIA, FBI, and others – do not participate in the portal, and there is no indication that they will anytime soon.

Watch the entire hearing, and read the witness testimony, here.

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Sen. Duckworth Introduces OLC Transparency Bill

Senator Tammy Duckworth recently introduced a bill that would make all Office of Legal Counsel opinions public (with exceptions for classified material), and put an end to secret law. The Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act) is an important milestone for transparency advocates, as OLC opinions have typically been hidden under FOIA on the basis that they are “deliberative” and “pre-decisional” (the claim that OLC opinions could be withheld as pre-decisional is itself perplexing;  OLC memos cannot simultaneously constitute working law whose decisions are binding while being protected as being pre-decisional). Neither Congress nor the public knows how many OLC opinions are currently in effect, much less the conclusions they reach. 

Demand Progress Legal Director Ginger Quintero-McCall hailed the bill’s introduction, stating, “The Office of Legal Counsel has shaped lasting U.S. policy under a dangerous shroud of secrecy that has shielded legal opinions that are controversial, even dubious or shoddy, from both congressional oversight and legal interpretation. Had this bill been law in 2002, it’s highly unlikely the U.S. would have engaged in human rights abuses at Abu Ghraib, as the legal justification provided by the OLC’s so-called ‘Torture Memos’ would not have withstood public scrutiny.” 

Demand Progress spearheaded a sign-on letter endorsing the legislation, which the National Security Archive was proud to sign.

Ellen Knight back at NSC 

Ellen Knight, the former National Security Council classification specialist who was pushed out of the NSC during the controversial prepublication review of John Bolton’s book, The Room Where it Happened, has been re-hired by the Biden administration as the NSC’s senior director for records access management.

The National Security Archive’s posting, The Bolton Book Saga: Anatomy of a White House Cover-Up, details how Knight confronted White House lawyers when they tried to block publication of the former National Security Adviser’s book. Knight, according to a revealing September 2020 court filing, suggested they were only intervening because the most powerful man in the world said that it needed to happen.” The court document asserts that in response, “several [attorneys] registered their agreement with that diagnosis of the situation.” Read the filing and our analysis here.

Colonel Odom’s “Chilling” Four A.M. Phone Call

At four in the morning on 3 October 1979, Colonel William Odom, military assistant to national security adviser Zbigniew Brzezinski, received a phone call from the Pentagon’s National Military Command Center informing him that an Air Force missile warning system had detected a submarine-launched ballistic missile (SLBM) launch off the coast of Oregon. It turned out to be a false alarm, but Odom told Brzezinski the experience was “chilling” and made him “wonder how to use the remaining four or five minutes” before the missile struck and set off a cataclysm.

The National Security Archive recently posted a number of records related to Odom’s early morning episode, complementing a previous publication on the most prominent false warnings from 1979 and 1980 that raised serious questions about the inadvertent triggering of nuclear war. The publication further adds to the history with previously unpublished records on incidents from the same time period, which were sparked by reports that over a thousand missiles were en route to U.S. territory. Read the rest at the National Security Archive.

In Brief:

New Spanish-Language Version of the Podcast “After Ayotzinapa”: Adonde Media presents “Después de Ayotzinapa”, its third original podcast, in co-production with Reveal News from the Center for Investigative Reporting and the National Security Archive. This investigation reveals new angles on the forced disappearance of 43 students in the state of Guerrero, Mexico, on the night of September 26 and the early morning of September 27, 2014. In six episodes presented by the journalist Olivia Zerón Tena, listeners will hear first-person testimonies about the attack and everything that happened after. Episodes are released every Tuesday and Thursday, with the final episode premiering on Thursday, April 7. Watch the trailer on Adonde’s “Después de Ayotzinapa” page.

RCFP Reviews Judge Ketanji Brown Jackson’s FOIA Record: Reporters Committee published an interesting survey of Judge Jackson’s dozens of FOIA-related opinions while serving on the district court (from 2013 – 2021). The entire survey is worth reading, but the main takeaway from RCFP is “Judge Jackson’s FOIA rulings demonstrate a deference to agency exemption claims, especially in the national security context, but a willingness to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public. Her record also reveals a willingness to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.”

Bill Clinton and the Budapest Memorandum: A recent opinion piece in the Wall Street Journal by George Bogden, a fellow at the Smith Richardson Foundation and at the German Marshall Fund of the U.S., draws on declassified documents – including those published by the National Security Archive – to re-examine the 1994 Budapest Memorandum. The memo led to, among other things, Ukraine’s disarmament. The article, “How Bill Clinton Sealed Ukraine’s Fate,” can be read here

EPA Sunsetting its Web Archive: The Environmental Protection Agency (EPA) is sunsetting its archive that contains “old news releases, policy changes, regulatory actions, and more,” on the grounds that it is no longer cost-effective and was never intended to be permanent. The Verge’s Justine Calma reports, “The archive is the only comprehensive way that public information about agency policies, like fact sheets breaking down the impact of environmental legislation, and actions, like how the agency implements those laws, have been preserved…It also shows how the agency’s understanding of an issue, like climate change, has evolved. And when the Trump administration deleted information about climate change on the EPA’s website, much of it could still be found on the archive.” The EPA says it will move much of the older content to its new website on a case-by-case basis.

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