The Department of Justice –just months after arguing that the CIA should not release a history of the 1961 Bay of Pigs fiasco because it could “confuse the public”— is now trying, again, to claim the role of “FOIA Ombudsman,” the entity that mediates FOIA disputes between the government and the public.
This simply doesn’t make sense. As Senators Leahy and Cornyn wrote in a letter condemning the DOJ’s maneuver, “As the authors of the OPEN Government Act, we are very troubled that the Department’s proposal is inconsistent with the plain language of that law and with our intent. We are also concerned that the proposed modification to the Department’s records system will create unnecessary confusion for agencies and requesters alike, regarding how FOIA disputes are to be resolved within the Federal Government.”
The Senators wrote this letter to Attorney General Eric Holder in response to a March 19 notice by the Department of Justice, reported by Scott Hodes’s FOIA blog, that it was changing its Privacy Act system of records (read: Privacy Act exemptions) to include some DOJ Office of Information Policy records because of its role as “Ombudsman in disputes between the individuals and federal agencies concerning FOIA requests.” (For more on the Privacy Act, see this.)
Open government advocates have been critical of this seemly unilateral title bump by the DOJ OIP because –quite frankly– the DOJ has an atrocious record protecting the rights of FOIA requesters. Want examples?
Just off the top of my head, during the Obama administration, the DOJ has: defended agencies for simply ignoring the new, crystal-clear fee provisions of the 2007 OPEN Government Act; has made the “odd“ argument to the Supreme Court that FOIA should become a withholding, rather than a disclosure, statute; has proposed regulations that allow lying to FOIA requsters (it’s probably still doing this despite the regs having been beaten back) and denying new media fee waivers (DOJ OIP Director Melanie Pustay later testified that the public “misinterpreted,” “misconstrued,” “didn’t necessarily understand” the regulations); cooked its books to “achieve” a comically high 94.5% FOIA release rate; refused to confirm or deny the existence of a DOJ Office of Legal Counsel memo allowing the assassination of Americans, even as AG Holder made a public case as to why this is legal (without mentioning the killing of Anwar al-Awlaki, so the DOJ could continue to glomar documents about his assassination); proposed a blanket new cybersecurity FOIA exemption during Sunshine Week; and, finally, according to University of Syracuse’s FOIA Project, has reneged on Holder’s memo promising that the DOJ would only defend FOIA denials in cases that would clearly cause harm, the report states that the DOJ has not refused to defend a single FOIA case duing the Obama administration.
Hardly a steller record for an “ombudsman.” (And don’t forget to click the link in the first sentence of this article.)
