Time for transparency in government

How well these requests are handled varies widely. There have been times when we have requested records and those records have been released within a reasonable amount of time.

For most requests, however, the statutory period of twenty days is not being met. Some agencies even claim that every request gives rise to exceptional circumstances and tack on an automatic extension — and then, of course, fail to deliver the records within that timeframe.

For the “professional” requester who has in-house counsel and a litigation firm on retainer, obtaining the requested records is doable, while not a quick process. For those without this kind of firepower, it is less so.

If you have ever been forced to call a government agency to obtain information or a service, e.g., the DMV, you have some idea of how well the government works when the agency in question exists, at least ostensibly, to provide a service to the public. Now imagine that the agency doesn’t exist to service you, and that they are annoyed by your very existence and your audacity in asking them for records on how they do their jobs. While we and many other requesters have been successful in prying records out of agencies, in many instances this did not occur until a substantial amount of attorney time had been expended.

In our experience, the U.S. Department of Justice is one of the worst offenders in terms of timely FOIA compliance. This is sad since it is the Attorney General who provides guidance to agencies on how they process FOIA requests and who has stated with aspirational language that agencies should be helpful and look for ways to make process work well, even advising them to make discretionary disclosures.

Like all things involving this Administration, FOIA processing has become politicized. Early in the Obama Administration, Gregory Craig, then Counsel to the President, sent agencies a memo requiring them to flag requests with “White House equities” and to obtain White House clearance before releasing responsive records on such requests. Because of this, agencies have gone so far as to attempt to not disclose the names of White House staff that attended meetings with agency personnel.

The White House has even insisted in knowing the name of who is requesting records with “White House equities” before providing clearance to release the records. All of this leads to delays in releasing the records and in turn, in many instances, reduces or destroys the utility of the requested records to the requester because by the time records are released the issue may no longer be of public concern.

At other times agencies have failed to conduct adequate searches for responsive records, claiming that the requested records do not exist. In many instances we’ve had to helpfully show them evidence, such as contracts to which they are a party, that the records do in fact exist and push them to do their job.

We’ve had agencies claim that it would be too difficult to find interpretative letters that were signed by the head of the agency, even though they have no problem finding these letters to use for their own purposes in the rulemaking context.

Agencies are required to segregate releasable records from any records that may be exempt from disclosure. Yet, many times agencies find this too tiresome and attempt to throw a blanket exemption on all records, claiming them all to be exempt from disclosure.

When reviewing the ways to make the FOIA better, these problems, and others, should be examined. Also, the Administration personnel tasked with fulfilling the mandates of the Act should have their feet held to the fire. Ultimately, regardless of what Congress passes, the law will only be as good as the personnel tasked with fulfilling it. Holding them accountable must be part of this process.

Nathan Mehrens is President of Americans for Limited Government Foundation. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.