Coronavirus exacerbates backlogged FOIA transparency process

Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, called the bureau’s move “absurd.” “Especially at times like this, government transparency is essential to public trust, and agencies should be working to provide timely public access to records and information through FOIA,” she said in a tweet.

In an ironic twist, the FBI’s announcement came during Sunshine Week 2020, meant to highlight the importance of government transparency and honor the government’s FOIA professionals. Sunshine Week’s events were canceled due to the coronavirus outbreak.

Other government agencies, including the Environmental Protection Agency and Interior Department, told E&E News their FOIA operations are proceeding unabated. Still, the presence of the coronavirus pandemic is far-reaching, leading to school and business closures around the country and other disruptions to government operations.

There were 212,616 confirmed COVID-19 cases around the world and at least 8,727 deaths tied to the infection as of Wednesday afternoon, according to Johns Hopkins University. In the United States, there were 7,323 cases of the virus believed to have originated in China, which has resulted in 115 deaths in the U.S.

On Monday came the release of a congressionally requested Government Accountability Office report on government secrecy that found that the backlog of FOIA requests across the government has grown more than 80% since 2012, in part due to increased requests. It also found that only 27% of FOIA requests were fully granted and that government agencies only made 155,000 proactive disclosures in 2018, down from previous years.

The 30-page GAO audit report noted that 118 agencies reported their FOIA activities to the Justice Department’s Office of Information Policy for 2018, but dozens were slow to comply with the FOIA Improvement Act of 2016.

“As of February 2020, OIP officials reported that 79 agencies have updated their FOIA regulations and 23 agencies have updates in progress,” the report noted. “Sixteen agencies have not provided a status update to OIP or have no plans to update their relations.”

On Monday, Republican Sens. Chuck Grassley of Iowa and John Cornyn of Texas along with three Democrats — Sen. Dianne Feinstein of California, Sen. Patrick Leahy of Vermont, and Rep. Carolyn Maloney of New York — released a statement criticizing those agencies for contributing to the growing backlog.

“Full compliance with FOIA is critical to ensure the public has access to government records in order to hold the government accountable. According to GAO’s report, agencies are making progress in hiring FOIA staff, but they are keeping more information secret and backlogs continue to grow,” the bipartisan group said. “It is particularly concerning that more than three years after Congress enacted the FOIA Improvement Act, 16 agencies either have no plans to update their FOIA regulations to come into compliance with those reforms or have failed to provide an update to the Department of Justice.”

The FOIA statute was enacted in 1967, after which it has gone through a multitude of reforms, including the FOIA Improvement Act of 2016 that instituted procedural requirements such as proactive disclosures to make records more readily available online. The reformed law also required agencies to update their regulations to “notify requesters that they have at least 90 days to file an administrative appeal, provide dispute resolution services at various times throughout the FOIA process, describe the rights of requesters for denied requests, and inform requesters of additional restrictions on agencies for charging certain fees.”

The GAO report noted that, back in 2018, it had recommended that six specific federal agencies update their FOIA regulations.

“As of February 2020, two out of six agencies — National Aeronautics and Space Administration and the Office of Management and Budget — updated their FOIA regulations to comply with the FOIA Improvement Act of 2016, as we recommended in 2018,” the report concluded. “Agency officials from all four of the agencies that have not yet updated their regulations — the American Battle Monuments Commission, U.S. Agency for Global Media, Department of State, and U.S. African Development Foundation — told us that they are taking steps to do so.”

The GAO said, “Until these four agencies publish updated regulations that address the necessary requirements … they likely will be unable to provide the public with required regulatory and procedural information to ensure transparency and accountability in the government.”

Successful FOIA lawsuits have made headlines in recent months.

A lawsuit by BuzzFeed and CNN against the Justice Department has led to the segmented releases of FBI interview notes from special counsel Robert Mueller’s investigation revealing details about the Russian translator at the 2016 Trump Tower meeting telling agents that Russian collusion wasn’t a topic of conversation. A State Department lawsuit by Judicial Watch resulted in a federal judge ruling that former Secretary of State Hillary Clinton should be deposed about her private email server and the Benghazi terrorist attacks. Clinton asked an appeals court to overturn the order.

An FOIA request to the Justice Department inspector general’s office by the Washington Examiner revealed that the independent watchdog concluded Bryan Paarmann, the former deputy assistant director of the FBI’s international operations division, “improperly disclosed court-sealed and law enforcement sensitive information to the media.”

In response to an FOIA request from journalist Jason Leopold, the Office of Inspector General for Health and Human Services said Wednesday that it wasn’t conducting any internal investigations into the handling of the coronavirus outbreak.