The New York Times, Vice News Slam Obama Administration Over FOIA Delays

A top attorney for The Times will tell Congress there’s a “culture of unresponsiveness” when it comes to FOIA.

The New York Times logo is seen on the headquarters building on April 21, 2011 in New York City.
National Journal
June 1, 2015, 2:55 p.m.

A top law­yer for The New York Times, journ­al­ists, and ad­vocacy groups will pum­mel the Obama ad­min­is­tra­tion’s per­form­ance in re­spond­ing to Free­dom of In­form­a­tion Act re­quests at a House hear­ing Tues­day.

Testi­mony sub­mit­ted ahead of the House Over­sight and Gov­ern­ment Re­form Com­mit­tee hear­ing on FOIA lays bare the frus­tra­tion with thwarted ef­forts to pry loose in­form­a­tion un­der the stat­ute de­signed to provide ac­cess to fed­er­al doc­u­ments.

Dav­id Mc­Craw, an as­sist­ant gen­er­al coun­sel at The Times who handles FOIA law­suits, says in pre­pared testi­mony that last year he filed eight FOIA law­suits on be­half of the pa­per, largely in re­sponse to “un­ac­cept­able delay” by agen­cies served with re­cords re­quests.

“While stat­ist­ics show that re­sponse times have im­proved, we know from ac­tu­al ex­per­i­ence that re­sponses from many agen­cies take months or years,” Mc­Craw writes.

His testi­mony al­leges a “cul­ture of un­re­spons­ive­ness,” not­ing that some agen­cies do a good job while oth­ers show little sign of im­prove­ment over the years re­spond­ing to re­quests. Un­der the law, agen­cies are sup­posed to re­spond to re­quests in 20 busi­ness days, but in prac­tice it usu­ally takes longer—of­ten much, much longer.

Pres­id­ent Obama ordered more re­spons­ive­ness to FOIA at the out­set of his pres­id­ency, and ad­min­is­tra­tion of­fi­cials say they have made pro­gress, but ad­voc­ates and journ­al­ists say ma­jor prob­lems re­main.

Jason Leo­pold of Vice News, who makes fre­quent use of FOIA, says he has sub­mit­ted thou­sands of re­quests to dozens of agen­cies over the years, and that few­er than 1 per­cent pro­duce re­sponses in the time frame that the law man­dates. His testi­mony name-checks agen­cies that are es­pe­cially un­re­spons­ive.

“I routinely ex­per­i­ence delays of sev­er­al years. The agen­cies that have con­sist­ently been slow­est to re­spond to my FOIA re­quests have been the FBI, the De­part­ment of Justice, and United States South­ern Com­mand. In the past two years, I have also be­gun to ex­per­i­ence ex­tremely lengthy delays in re­ceiv­ing re­sponses from the [Na­tion­al Se­cur­ity Agency],” he says.

It was a FOIA law­suit from Leo­pold that last week promp­ted a fed­er­al judge to or­der the State De­part­ment to be­gin re­leas­ing batches of former Sec­ret­ary Hil­lary Clin­ton’s emails in late June and every 30 days there­after.

The testi­mony from journ­al­ists and ad­voc­ates takes aim not only at delays, but also at what crit­ics con­sider agen­cies’ ab­use of ex­emp­tions avail­able un­der the law to with­hold in­form­a­tion, and ex­cess­ive re­dac­tions.

Sharyl At­tkisson, a former CBS in­vest­ig­at­ive re­port­er and au­thor of Stone­walled, a book cel­eb­rated by con­ser­vat­ives that’s sharply crit­ic­al of the Obama ad­min­is­tra­tion, will tell the com­mit­tee that FOIA has be­come a “use­less shad­ow of its in­ten­ded self.”

She re­counts her prob­lems get­ting in­form­a­tion from agen­cies in­clud­ing the FBI, the Cen­ters for Dis­ease Con­trol and Pre­ven­tion, and the State De­part­ment. For in­stance: “I … filed a law­suit for Health­Care.gov ma­ter­i­al I sought in 2012. Ap­par­ently the gov­ern­ment didn’t both­er to start look­ing for doc­u­ments I re­ques­ted back in 2012— only now in 2015 are they do­ing so un­der court pres­sure. Doc­u­ments provided so far are re­dac­ted bey­ond reas­on.”

Anne Weis­mann of the non­profit Cam­paign for Ac­count­ab­il­ity, a wit­ness in­vited by com­mit­tee Demo­crats, says some prob­lems arise be­cause the stat­ute as writ­ten has lim­it­a­tions that some agen­cies have used to “cir­cum­vent” dis­clos­ure.

“Great­er pub­lic dis­clos­ure is fur­ther hampered by the lack of any mean­ing­ful over­sight with­in the Ex­ec­ut­ive Branch, and the lack of com­pre­hens­ive train­ing for agency FOIA per­son­nel,” Weis­mann’s testi­mony states. “The gov­ern­ment’s fail­ure to ef­fect­ively man­age its re­cords, par­tic­u­larly elec­tron­ic re­cords such as emails, also has left agen­cies ill equipped to re­spond ad­equately to FOIA re­quests.”

She urges con­gres­sion­al pas­sage of the bi­par­tis­an FOIA Over­sight and Im­ple­ment­a­tion Act of 2015, which cleared the Over­sight Com­mit­tee in March.

The bill would make a series of changes, in­clud­ing co­di­fy­ing a “pre­sump­tion of open­ness” when agen­cies pro­cess re­quests to avoid ab­use of ex­emp­tions, and pro­vi­sions to strengthen com­pli­ance through bet­ter over­sight with­in the gov­ern­ment.

Mc­Craw cited a fre­quent reas­on for delay: when one agency refers a re­quest to a second agency that’s in­volved in the in­form­a­tion sought, be­cause, he noted, few rules gov­ern this pro­cess. The agency hit with the ori­gin­al re­quest lacks power to de­mand in­form­a­tion from the oth­er one.

“Much clear­er rules and dead­lines are needed for the re­fer­ral pro­cess,” Mc­Craw states.

A second day of the hear­ing Wed­nes­day will fea­ture testi­mony from gov­ern­ment agen­cies in­clud­ing the State De­part­ment, which is cur­rently sift­ing through thou­sands of pages of emails turned over from Clin­ton’s private serv­er.

Joyce Barr, the State De­part­ment’s chief FOIA of­ficer, will testi­fy. She could face ques­tions about a re­cent Wall Street Journ­al re­port that Clin­ton aides at State scru­tin­ized “polit­ic­ally sens­it­ive doc­u­ments re­ques­ted un­der pub­lic-re­cords law and some­times blocked their re­lease.”

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