Throughout this week, the Washington Examiner’s Restoring America project will feature its latest series titled “Reforming the Deep State: Reining in the Federal Bureaucracy.” We invited some of the best policy minds in the conservative movement to speak to the issues of what waste, fraud, abuse, and unaccountability exist throughout the federal government and what still needs to be done. To read more from this series, click here.
The deep state isn’t nearly as deep as it would like you to think, nor is it as clever as it thinks — these are, after all, bureaucrats. Many may be partisans intent on quietly thwarting one party’s agenda while greasing the skids for the other, but they’re also the types who ask why you didn’t put the cover sheet on your TPS report.
What the deep state does well is to use the bureaucracy’s failings and inefficiencies to cover its tracks. Transparency and accountability can get lost in clerical processes. Ambiguous official terminology can muck up or even prematurely end straightforward information searches.
That is how some agencies subvert the Freedom of Information Act. FOIA was passed by Congress in the 1960s and amended several times since, to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”
Under it, federal agencies must preserve records and communications, including memos, emails, internal reports calendars, and other documents. Any person, group, or organization may submit requests for information based on subjects, dates, names, keywords, etc., and the agency must search for and produce any responsive records. There are exceptions for individual privacy, classified information, draft and deliberative conversations, and others, and agencies can and do redact information from responsive documents.
But to make FOIA requests with any frequency is to encounter a variety of glitches, delays, misunderstandings, frustrating redactions, and more. Sometimes, these incidents are simple mishaps. Other times, they look like intentional stalls and mistakes to slow the process in the hope that the requester gets discouraged and goes away.
And many do go away because when a federal agency is uncooperative with FOIA requests, the ultimate recourse is to sue. For organizations like mine, Protect the Public’s Trust, that’s part of what we do. We are built to pursue information into court. For most news organizations whose entire legal budget is reserved for libel, plagiarism, and copyright infringement (let alone for private citizens without legal budgets), the legal costs are prohibitive.
How do agencies frustrate FOIA requests? Shows of incompetence are an easy way. For instance, PPT has received productions of dozens or hundreds of pages entirely redacted. In one case, after asking for justification for more than 100 fully redacted pages, the agency responded by producing records with far fewer redactions. Among the most egregious examples the corrected production revealed was one email thread in which the only legitimate redaction was a New York Times reporter’s cellphone number.
Another dodge is the “no records” response. We frequently use information obtained via FOIA as a basis to request additional information. What happens when a new request, which should contain emails we already know exist, results in a “no records” response? This cannot be correct and is generally fixed. But in 2024, the average response time for a simple FOIA request was 41 days, rather than the 20 prescribed by statute. As such, a requester may be looking at several months from the first request to useful production, especially for anything more complex.
Misinterpreting the language of a request is another common SNAFU. There are literally hundreds of variations of these mishaps, and all these roadblocks take time and patience to resolve. Some agencies that maintain files on individuals, such as the FBI and IRS, routinely misinterpret requests for communications between agency personnel and outside individuals about topics of public interest, information that is commonly provided via FOIA, as requests for the files on those individuals. The back-and-forth can take months (or years) and is often rectified only via litigation.
Of course, not all FOIA frustration comes on the back end. Government officials are aware of FOIA, and one discussing anything he or she believes politically, ethically, or legally sketchy would be foolish to do so on government email or text. One of the most outrageous examples of this came from Dr. David Morens, a senior adviser to Dr. Anthony Fauci at the National Institute of Allergy and Infectious Diseases from 1998 until 2022, who wrote to Peter Daszak, the disgraced head of EcoHealth Alliance, which lost government funding over its part in risky research at China’s Wuhan laboratory.
“I learned from our FOIA lady here how to make emails disappear after I am FOIA’d but before the search starts,” Morens wrote to Daszak. “So I think we are all safe. Plus I deleted most of those earlier emails after sending them to Gmail … We are all smart enough to know to never have smoking guns … if we did we wouldn’t put them in emails. And if we found them we would delete them.”
CLICK HERE TO READ MORE FROM THE ‘REFORMING THE DEEP STATE’ SERIES
Since that email was read aloud by House Oversight Chairman James Comer (R-KY) in a committee hearing, Morens wasn’t as informed as he thought he was.
But nothing says “Deep State” like having a FOIA lady who tells you how to avoid FOIA.
Michael Chamberlain is the director of Protect the Public’s Trust.
