Hearing examines FOIA reform, and whether the act is an effective tool

Kelly Swanson | Freedom of Information | News | June 5, 2015

The question of whether the federal Freedom of Information Act is an effective tool was hotly debated at a two-day hearing held by the House Oversight and Government Reform Committee this week. Requesters answered emphatically that the FOIA process is broken, but agency employees disagreed.

FOIA requesters including reporters and watchdog groups testified before the committee on Tuesday, addressing the FOIA barriers they’ve encountered, including backlogs, request delays, excessive redactions, and unreasonable fees.

Government officials responsible for responding to FOIA requests testified on Wednesday morning and, in stark contrast to the countless stories of inefficiency, gave themselves a pat on the back for what they considered to be competence and timeliness in response to FOIA requests.

Rep. Elijah Cummings noted the two distinct themes, saying, “You know as I listen in here, you all [government agency officials] are making everything sound so rosy. We had a lot of testimony yesterday, and I’m sure all of you are doing great things, but we have to balance that with what we heard yesterday.”

The hearing on Tuesday began with Sharyl Attkisson, a former CBS journalist, who called FOIA “a pointless, useless, shadow of its intended self” that is "broken by design.”

Attkisson talked about a particular request that she made when her daughter was 8 years old that was not answered until her daughter left for college.

“In 2013, the Defense Department finally responded to a FOIA request I’d made in 2003. Too late to be of use for the news story I was working on back them,” Attkisson testified.

The lack of timeliness in response to requests was one of the biggest concerns coming from the testimony on the first day of the hearing.

Under the FOIA, a response is generally due from an agency twenty days after a request is made, and in special circumstances only an additional ten-day extension is granted.

However, in fiscal year 2014, the backlog of FOIA cases that had not been processed within this time limit had increased by 67 percent.

“I have submitted thousands of FOIA requests to dozens of different agencies, and in my experience, fewer than one percent of my requests have been decided within the framework required by FOIA,” Vice News reporter Jason Leopold testified.

David McCraw, the assistant general counsel for the New York Times Company, testified about the “culture of unresponsiveness” that exists among government agencies, which often means that requesters are compelled to litigate a FOIA lawsuit simply to get agencies to respond to their requests.

“A citizen’s right to get information released in a timely fashion should not turn on whether the citizen is fortunate enough to have the resources and know-how to sue,” McCraw testified.

Tom Fitton, President of Judicial Watch, a foundation which supports government transparency, testified that his organization has filed nearly 3,000 FOIA requests under the Obama administration that have resulted in 225 FOIA lawsuits, mostly initiated simply to get a “yes or no answer from the administration,” Fitton said.

Response times have gotten so bad that Newsweek finance editor Leah Goodman even joked, “I come from a generation of journalists who were told, upon entering the newsroom, ‘If you want to know what you’re going to be writing about in three years, file a FOIA.’”

And receiving a response does not guarantee that all the requested information will be obtained. Cleta Mitchell, a partner at Foley and Lardner who cited her FOIA experiences with several grassroots citizens’ organizations, showed several giant binders that she received in response to a FOIA request. She opened the binders for the committee, displaying thousands upon thousands of nearly completely blacked out pages, producing no substantive or meaningful evidence in them.

Chairman of the Committee on Oversight and Government Reform Jason Chaffetz (R-Ut.) said that he found evidence of FCC redactions of staff commentary on statements like “Wow!” or, “Interesting,” because redactions of these statements were deemed to be deliberative and therefore exempt under the b(5) exemption.

“The time and expense that it takes to go through and do such silly, silly things is so frustrating and ridiculous,” Chaffetz said. “It gets very frustrating to hear anybody claim that we spend this exorbitant amount of money when you are going through and blacking out things like ‘wow’ or ‘interesting’ or one of my favorites, the name of the person who sang the national anthem, as if that is some state secret,” he said.

This begs the question of why these types of delays and excessive redactions are a common component of FOIA responses.

Rep. Elijah Cummings (D-Md) shed some light on the reason for routinely unhelpful responses, noting decreases of resources and personnel. in 2009 there were 4,000 FOIA officers working in federal agencies. Although the number of FOIA requests has increased by 20% since 2009, the number of FOIA officers was reduced to 3,838 in 2014.

Chaffetz suggested there is a different root cause. He opined the inefficiencies in FOIA are the direct result of a chilling effect of an email sent in April 2009 by White House Counsel Gregory Craig.

The memo, addressed to all executive department and agency general counsels, says, “Executive agencies should consult with the White House Counsel’s Office on all document requests [including Congressional committee requests, GAO requests, judicial subpoenas, and FOIA requests] that may involve documents with White House equities.”

“If you’ve got the yahoos at the White house having to review every document that falls under FOIA, then this is the heart of the backlog,” Chaffetz said.

The committee did not solely dwell on the problems with FOIA. They also sought advice from the panelists about potential solutions and the proposed FOIA Improvement Act of 2015.

According to the Associated Press, the proposed bill has the potential to significantly improve FOIA by codifying the presumption of disclosure, making the Office of Government Information Services (OGIS) more independent, establishing a modern FOIA internet portal, and reducing the over-use of exemption 5 withholdings.

Many witnesses on the first day talked about how this bill would help improve FOIA, but suggested added improvements.

“The only thing that could change things would be meaningful criminal penalties for violators,” Attkisson said.

Leopold agreed with Attkisson, saying that he thinks that provisions should be added to the bill to punish FOIA officers who do not comply with the rules both civilly and criminally.

On Wednesday, the committee invited federal employees who respond to FOIA requests to testify. Not surprisingly, their opinions of the efficiency of FOIA were quite different from the horror stories of the day before.

Melanie Ann Pustay, Director of the Office of Information Policy of the United States Department of Justice, discussed in her opening statement the successes of her department in complying with FOIA.

“In the face of many challenges this past fiscal year, agencies have achieved successes in many areas. And while we certainly believe there is more work to be done and we are continually looking for ways to improve the process, we are proud of what we have done so far,” Pustay testified.

The Office of Information Policy conducts a yearly assessment of the ninety-nine agencies that are subject to FOIA on a series of twenty-four different milestones, according to Pustay.

The Department of Justice received a perfect score of all greens on the assessment in 2011, meaning they had reached all of the twenty-four milestones.

Chaffetz was dubious of the legitimacy of that assessment.

“At the Department of Justice, you gave yourself 5 out of 5 on presumption of openness, effective system in place for responding, and proactive disclosure. Do you really think that anyone in the world believes that the department of justice is a 5 out of 5, A+ for proactive disclosure?” Chaffetz asked.

Pustay responded, “I absolutely do,” prompting Chaffetz to say, “Man! You live in la-la land, that’s the problem! You live in a fantasy land.”

Representative Jody Hice (R-Ga) was also skeptical.

“We are getting a rosy picture here, which quite frankly is not accurate,” Hice said. “You folks here are part of the problem.”

Chaffetz concluded the two-day hearing with a promise that a bill will be passed to reform FOIA after additional review of problems and potential solutions.

“There will be a FOIA reform bill. I want to take another breath and do several panels and get more perspective of the media and the outside groups so we get that thing just right.”

Chaffetz hopes to revive the sprit of a statement Obama made in his first day in office, that he was committed “to creating an unprecedented level of openness in Government.”

“We are going to look back at that bill and see if we can tighten up a couple of things,” Chaffetz said, “maybe lessen the number of exemptions and then speed up some other parts of the process. Let’s do what president Obama said. Let’s err on the side of ‘release it!’” Chaffetz concluded.