Six years into what President Obama had pledged would be “the most transparent administration in history,” transparency advocates are giving the president mixed reviews. Last week, lawmakers, reporters, and government watchdog organizations on both sides of the aisle came together for Sunshine Week, an annual celebration of government transparency laws like the Freedom of Information Act (FOIA).
Several watchdog groups released new reports for Sunshine Week highlighting problems with FOIA that the administration has failed to address, and those problems are getting worse:
- The Washington Examiner detailed a report by nonprofit watchdog group Cause of Action, which found White House officials significantly delayed FOIA disclosures by setting up a separate review process for politically sensitive documents.
- The Associated Press released its own analysis of FOIA response information on the record number of times the Obama administration stonewalled journalists who put in records requests. Politico revealed “aggressive executive branch claims for secrecy”.
- The Washington Free Beacon highlighted a report by the National Security Archive which shows that nearly half of all federal agencies have failed to update their internal FOIA regulations, the guidelines by which FOIA staff disclose records, to comply with current law despite several major amendments over the past three decades. The National Security Archive inquiry turned up that the Federal Trade Commission has not updated its FOIA regulations since 1975.
Upon signing the Open Government Initiative right after he took office in January 2009, President Obama said, “The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.” Furthermore, Attorney General Eric Holder issued a memorandum to all agencies directing them to have a “presumption of openness” as they were processing FOIA requests.
The common thread in all these reports is that the administration is not only failing to meet their own promise to live up to the spirt of FOIA, but they are also violating the law. That thread runs through the House Committee on Oversight and Government Reform’s oversight of FOIA compliance as well.
Our Committee [Oversight and Government Reform] has demonstrated that the administration has ignored, and sometimes outright violated, the fundamental principles of the law:
- In 2011, the Committee discovered that Department of Homeland Security political appointees were inserting themselves into their agency’s FOIA request review process, in order to restrict and delay the release of potentially embarrassing information.
- In 2012, the Committee found that many agencies failed even to keep basic logs of their FOIA responses, calling into question their ability to respond to requests.
- Working with outside transparency organizations, Committee investigators uncovered an email alias for former EPA Administrator Lisa Jackson: “Richard Windsor”. Officially, EPA claimed that the email alias was created because of the large volume of email that went to the administrator’s public email address. However, the email alias was discovered when FOIA requestors were given records featuring the name “Richard Windsor” involved in high level discussions. Whether intentional or not, the real impact of the alias was that it misled FOIA requestors.
Many of these problems can only be fixed by leadership that truly embraces the mandate to be open and transparent with the American people. On February 26th of this year, the House of Representatives approved, by a vote of 410-0, the FOIA Oversight and Implementation Act of 2014 (FOIA 2014). FOIA 2014 was crafted on a bipartisan basis and focuses on improving the implementation of the existing law and will ensure better compliance.
The goal is to peel away at the red tape that makes the FOIA process cumbersome, frustrating, and ineffective. Right now, the culture surrounding FOIA requests is to withhold as much information as possible, and using FOIA exceptions as a method to deny any request deemed too sensitive. The new law will level the playing field, and keep government agencies from denying information to those who seek it out.
The bill codifies the “presumption of openness”- meaning that agencies must release FOIA requested records unless they are explicitly prohibited from disclosure. This bill streamlines and clarifies the process for making FOIA requests, including establishing a one-stop governmentwide online portal for requestors. The bill requires agencies to submit annual compliance reviews, and clarify their appeals process for denied requests. H.R. 1211 strengthens the Office of Government Information Services, the FOIA Ombudsman, by allowing it to communicate directly to Congress without having to go through the White House Office of Management and Budget. In addition to a more vocal FOIA Ombudsman, the bill creates a Chief FOIA Officers Council to ensure best practices for processing requests are shared between agencies, and directs OGIS to establish an Open Government Advisory Committee that will include at least one member of the media.
These ongoing oversight mechanisms are the most important changes in the law. Sunshine Week comes once a year, but the work to improve FOIA and our other cornerstone transparency laws must be continuous. The House of Representatives stands undivided on this issue. I look forward to working with our counterparts in the Senate, particularly Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Ranking Member Chuck Grassley (R-Iowa), and Sen. John Cornyn (R-Texas). Perhaps next Sunshine Week will be a little bit brighter.