December 25, 2014

The year in government transparency: More FOIA lawsuits as reform effort failed

From mysteriously missing emails to confessions of voter deception, federal officials spent much of 2014 hiding their activities behind closed doors.

At one point during the year, IRS attempts to hide emails to and from Lois Lerner, the tax agency’s former director for exempt organizations, focused intense public attention on the issue of government secrecy.

At another point, MIT professor Jonathan Gruber, a consultant who worked on the team that created healthcare cost models for Obamacare, took center stage when he appeared on multiple videos saying passage of the law he helped craft was made possible by misleading “stupid” voters.

Lerner and Gruber put public faces on a persistent problem in the nation's capital with the federal government’s resistance to making public documents that might embarrass officeholders or bureaucrats.

It’s a problem that citizens, journalists and nonprofit advocacy groups constantly confront when filing requests for government documents that must be made public unless they are specifically covered by at least one of nine exemptions included in the Freedom of Information Act.

Originally approved by Congress and signed by President Lyndon B. Johnson in 1966, FOIA has since been regularly updated to adapt to changes in the technology and media landscapes. Hundreds of thousands of FOIA requests are filed every year, mostly for routine documents such as military, family and entitlement records.

But thousands of those FOIA requests are for documents that somebody, somewhere in the government, would prefer not be made public. Consequently, 2014, like so many years before, saw thousands of FOIA requests left to gather dust in government offices.

This year’s effort to speed up the FOIA process failed when the Senate and the House weren’t able to vote on a compromise measure after each chamber approved bills with bipartisan support.

The 96 federal agencies that submitted individual FOIA reports at the end of 2013 began this year with 98,584 leftover requests. The Department of Justice said it doesn’t plan to release comprehensive FOIA numbers for 2014 until February 2015. The agencies handled 674,673 FOIA requests in 2013.

Of those requests, government officials fully granted an average of 36 percent, or a just a little more than a third, according to data culled by the Justice Department. They denied all or part of the rest.

The relative openness of different government offices ranged from the Selective Service System, which fully granted 100 percent of the FOIA requests it received last year, to the Special Inspector General for Afghanistan Reconstruction, which denied all or part of every request it handled in 2013.

The Department of Homeland Security processed the most FOIA requests and racked up the biggest backlog of unanswered requests and appeals in the federal government, according to the Government Accountability Office.

DHS fully granted just 9 percent of last year’s requests, Justice Department reports showed.

Julian Sanchez, a senior fellow at the Cato Institute, told the Washington Examiner that FOIA requests for security information are often ignored unless the requester takes the agency to court.

“It’s basically taken for granted that if you want something interesting out of any sort of intelligence agency, you have to litigate,” Sanchez said.

For example, the CIA fully granted just 462 FOIA requests of the 4,625 it processed last year, meaning CIA officials denied all or part of more than 90 percent of the FOIA requests the agency handled in 2013.

Government agencies were hit with more freedom of information lawsuits in 2014 than in any year since at least 2001, said Greg Munno, assistant research professor at Syracuse University’s Newhouse School of Public Communications. Syracuse provides research support for the FOIA Project, an effort to document government compliance with the transparency law.

Munno said his research team counted 422 suits in 2014, the highest number since the FOIA Project began tracking them.

“It looks like there has been a trend of a higher number of lawsuits under Obama than under Bush, although there’s a lot of fluctuation year to year,” Munno told the Examiner.

He said the spike could be the result of a number of factors, from “frustration” with the law to natural variations in activity.

While news outlets and advocacy groups filed many of the FOIA lawsuits — with Judicial Watch topping that list with 34 cases — “the majority of people that brought suits in 2014 were just individuals,” Munno said.

Sean Moulton, director of open government policy at the Center for Effective Government, said obstacles to getting records through FOIA requests begin long before an agency has the chance to block them itself.

Moulton said many rejected requests stem from confusion over which agency to contact and a lack of clarity about what documents the requester is seeking.

Despite the setback at the end of the 113th Congress, transparency advocates on both sides of the aisle in Congress will be back in 2015.

“The FOIA Improvement Act will help open the government to all Americans by placing an emphasis on openness and transparency, rather than allowing agencies simply to hide behind exemptions,” Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., said in a joint statement following the bill’s passage. They are expected to reintroduce the bill in the 114th Congress.

The House version of the FOIA Improvement Act was co-sponsored by Rep. Darrell Issa, chairman of the House Committee on Oversight and Government Reform, and Rep. Elijah Cummings, D-Md., the committee’s ranking minority member.

The failed legislation would have required agencies to publish any records subject to FOIA that have been requested three or more times. It would have barred agencies from charging fees if they didn’t fulfill requests within the law’s 20-day deadline for standard requests, although some could take much longer.

The bill would have also narrowed the scope of records that fall within existing exemptions, which agencies often interpret broadly.

Moulton cited the White House’s failure to support the reform bill as one of the year’s most telling examples of government secrecy.

“The main parts of the bill really just set into law policies this administration put out in guidance,” he said.

He was referring to President Obama’s promise soon after taking office in 2009 that his would be “the most transparent administration in history.” Obama had also instructed executive branch agencies to employ “a presumption of disclosure” when responding to FOIA requests.


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