A New Era of Openness? How and Why Political Staff at DHS Interfered with the FOIA Process
March 30, 2011
Report also details efforts by Department lawyers to obstruct the committee's investigation
WASHINGTON. D.C. – Rep. Darrell Issa (R-CA), the Chairman of the House Committee on Oversight and Government Reform, today released a report: "A New Era of Openness? How and Why Political staff at DHS Interfered with the FOIA Process." The report details the committee's findings about inappropriate interference by Obama Administration political appointees in the Department of Homeland Security FOIA process as well as efforts by the Department of Homeland Security to obstruct the committee's investigation.
"There is a significant divide between what President Obama has directed agencies to do on FOIA and what political appointees at the Department of Homeland Security are actually doing," said Chairman Issa. "Political appointees do not have a right to stop or delay releases of information through FOIA because they find them embarrassing, inconvenient, or politically sensitive. There is no place for this kind of interference in a process designed to create transparency and accountability in government.
The report's findings include:
Senior Political Appointees reviewed and approved responses.
By the end of September 2009, copies of all significant FOIA requests were required to be forwarded to the Secretary's political staff for review. The career staff in the FOIA Office was not permitted to release responses to these requests without approval from political staff.
Political appointees do not acknowledge the approval process.
Political appointees refused to acknowledge that approval from the Secretary's political staff was required to release a response to a significant FOIA request as of September 29, 2009. Their position during transcribed interviews was that the policy was implemented for awareness purposes only. Documents show this position is indefensible.
Political appointees conduct their own searches.
Documents and witness testimony show political appointees run weak and incomplete searches for their own documents. They were allowed to choose their own search terms despite lacking basic understanding of the statute.
The Department abused the (b)(5) exception.
Original versions of documents that were heavily redacted before being released to the Associated Press show the Office of General Counsel relied on exception (b)(5) – normally meant to protect pre-decisional records– to prevent the release of embarrassing records.
The Secretary's political staff stopped using e-mail.
Political appointees stopped using e-mail to clear response packages in the second quarter of 2010. Instead, they contacted the career staff in the FOIA Office by telephone.
The Secretary's political staff marginalized and mismanaged the career FOIA staff.
The intrusion of the political staff into the FOIA process wasted the time and resources of the Privacy Office. The deterioration of the relationship between the Front Office and the FOIA Office was accelerated by constant changes to the significant FOIA response process. The constantly-evolving process and burdensome questions from the Secretary's political staff delayed responses.
The report also explains how lawyers of the Department's Office of the General Counsel worked to obstruct the committee's investigation. For example:
- On January 14, 2011, Chairman Issa requested documents from DHS no later than January 29. While the Department pledged to cooperate with the investigation and did not indicate it would not meet the January 29 deadline, the committee subsequently obtained an e-mail dated January 20, 2011, from the Department's General Counsel's office instructing staff not to search for responsive documents.
- Department lawyers did not negotiate the terms of witness interviews in good faith. Over three weeks of negotiation, the Department did not communicate to witnesses that the choice to appear was theirs to make, despite representing to the Committee that they would do so. Additionally, DHS Office of General Counsel representatives pressured one witness to allow them to participate in the planning of, and be present during, her interview.
- After a witness interview on March 4, 2011, a Department lawyer attempted to remove Committee documents from the interview room. DHS Attorney Reid Cox attempted to leave the room with the Committee's exhibits in his bag. Committee staff asked Cox if he had the exhibits in his bag, and he confirmed that he did. Cox was admonished by Republican and Democratic staff that he was not permitted to leave with the exhibits. Democratic staff advised Cox that the exhibits are Committee documents and as such, they are the property of the Committee and cannot be removed without permission. Cox explained that the Department disagreed with that position and he moved toward the door. Republican staff advised Cox to leave the exhibits and contact the Committee to discuss the matter. Cox had a counter-proposal: "How about I take the exhibits, and you call me?" While Cox ultimately left the documents, any attempt to steal Committee documents is a serious matter. If the motive for stealing Committee documents is to use them to conduct a forensic investigation to identify a Committee source, it creates an extremely sensitive situation.
Chairman Issa made the following statement about the Department of Homeland Security's efforts to obstruct the investigation:
"For over two months, this committee has seen Administration representatives at DHS give lip service to cooperating with Congressional oversight while simultaneously using deceitful and underhanded tactics to undermine it. The Department of Homeland Security's bad faith in this matter will affect how the committee approaches future oversight efforts of an Administration that sorely needs it."
Click here for a copy of the report: A New Era of Openness? How and Why Political staff at DHS Interfered with the FOIA Process.