Lawmakers side with reporters in FOIA fight

WASHINGTON—President Barack Obama came to office promising to run the most transparent administration in U.S. history, but even his most ardent supporters acknowledge it hasn’t worked out that way. The Obama-era federal government has prosecuted more whistleblowers and pursued more journalist sources under the Espionage Act than any prior administration. It’s even spied on reporters. Yet the cumulative effect of those activities pales in comparison to the daily roadblocks reporters face in obtaining information from government agencies.

This week, the House Oversight and Government Reform Committee held two hearings to examine why the backlog of pending Freedom of Information Act (FOIA) requests has more than doubled since Obama took office—from more than 77,000 in 2009 to almost 160,000 in 2014.

“FOIA should be one of the most powerful tools of the public and the press in a free and open society,” said investigative reporter Sharyl Attkisson. “Instead, it’s largely a pointless, useless shadow of its intended self.”

Congress enacted FOIA in 1966 for individuals—both journalists and members of the public—to access non-classified documents and foster government accountability. Federal agencies have 20 days to respond to a request, or 30 days in unusual circumstances.

On Tuesday, a string of journalists and attorneys testified they often wait years to receive responses. They said agencies exacerbate the backlog by over-classifying documents.

“The vast majority of those millions of secrets have nothing to do with terrorism, or our national or individual security,” said Terry Anderson, a former Associated Press journalist and university professor. “They involve automatic, kneejerk decisions by the horde of bureaucrats who have the authority to stamp ‘top secret’ on the flow of papers that come before them.”

Attkisson said she has experienced the same bureaucrats holding up requests from the Clinton administration to the Bush administration and now the Obama administration. She cited one request she submitted to the Department of Defense when her daughter was 8, and it wasn’t fulfilled until she was going off to college a decade later.

“We’re better than that,” said Rep. Elijah Cummings, D-Md., the top Democrat on the committee.

Journalists and legal experts said many government agencies have little incentive to take FOIA requests seriously until an organization files a lawsuit. At the end of litigation, agencies must turn over documents—some still refuse to comply—but they don’t face any repercussions.

“There is no penalty for routinely violating the law,” said Vice reporter Jason Leopold, who has more than a dozen pending FOIA lawsuits.

David McCraw, New York Times assistant general counsel, said agencies have a “culture of non-responsiveness” and cited eight FOIA lawsuits he filed in 2014. Tom Fitton, president of Judicial Watch, a Washington-based watchdog group, said his organization has filed some 225 lawsuits in federal court during Obama’s tenure.

“Most of these lawsuits are just to get a yes or no answer from the administration,” Fitton said. “The Obama administration’s casual law-breaking—and it is lawbreaking—when it comes to FOIA is a national disgrace and shows contempt for the American people’s right to know what their government is doing.”

Current legislation pending in the House and Senate would codify the assumption of disclosure, but the bills do not include penalties for those who don’t comply.

Several witnesses suggested the only viable solution may be criminal prosecution for government employees who knowingly break FOIA law. Newsweek investigative reporter Leah Goodman said withholding one week’s pay from noncompliant federal workers would also “dramatically” decrease obstruction.

Lawmakers on both sides of the aisle agreed the status quo is unacceptable, but they disagreed on the nature of the problem and what to do about it. Republicans said political motives likely fueled the delays and stonewalling, but several Democrats cited budget cuts as the primary reason for the backlog. Cummings said while FOIA requests have spiked from 558,000 in 2009 to 714,000 in 2014, government employees assigned to handle them have shrunk by 4 percent (162 persons).

Witness Lisette Garcia with the FOIA Resource Center pushed back against that notion, saying agencies have increasingly turned to independent contractors—some of whom earn as much as $250,000 annually. She cited self-reported agency figures that show between 15 percent and 25 percent of their FOIA budgets go toward resisting production requests.

But on Wednesday, a panel of government witnesses again cited budget cuts, high staff turnover, and large FOIA requests, as the source of the problem. “Broad requests can result in the IRS needing to collect and redact thousands of documents for a single requester,” said Mary Howard, the top FOIA officer at the Internal Revenue Service—whom the committee had to subpoena to appear. She said the agency closes 80 percent of its cases within 30 days.

Melanie Ann Pustay, director of the Department of Justice office of information policy, said her department takes “very seriously” its obligation to encourage compliance and has never knowingly broken FOIA law. She defended the agency giving itself a 5-out-of-5 rating for proactive disclosure.

“Are you kidding me?” said an incredulous Rep. Jason Chaffetz, R-Utah, the committee’s chairman. “Man, you live in la la land. … We’re at the heart of why I think there’s a problem—because you all think you’re doing a great job.“

White House press secretary Josh Earnest told reporters the administration is “justifiably proud” of its FOIA record and called on Congress to submit to the same standard: “Those who are interested in advocating for transparency in government should advocate for Congress being subject to those kinds of transparency measures.”