Journalists and transparency advocates railed against the Obama administration’s culture of secrecy Tuesday as lawmakers explored ways to fix flaws in the Freedom of Information Act.
One reporter said a FOIA request she filed to the Pentagon when her daughter was eight years old was ignored until her daughter was heading off to college. Another said he was denied access to information about his own kidnappers by the Drug Enforcement Agency because he did not have a signed waiver from the men who had held him hostage.
The House Oversight and Government Reform Committee hearing on transparency came days after a federal judge used a FOIA request filed by Vice News to force the release of Hillary Clinton’s private emails on a rolling basis.
But the victory against government agencies was a rare bright spot in an otherwise dark and tedious process, witnesses testified Tuesday.
Members of the committee and journalists alike expressed frustration with the government stonewalling they’ve faced in recent months regarding the National Security Agency’s surveillance programs and the State Department, among other high-profile issues.
Rep. Jason Chaffetz, chairman of the Oversight Committee, highlighted an April 2009 memo instructing federal agencies to rout FOIA requests and congressional inquiries that involved “White House equities” through the president’s staff. The now-infamous memo was written weeks after President Obama promised his would be the “most transparent administration in history.”
“If you’ve got the yahoos at the White House who review every document … this is the heart of the backlog,” the Utah Republican said. “The heart of the backlog lies in this memo.”
The number of FOIA requests collecting dust in various federal agencies has skyrocketed in recent years. It spiked from 96,000 to 160,000 requests between 2013 and 2014, and continues to climb as unprocessed FOIAs pile up across the government.
Witnesses said the only way to prompt a response to FOIA requests under the present system is to sue the agency involved.
David McCraw, legal counsel to the New York Times newsroom, said he filed eight FOIA lawsuits on behalf of the paper last year.
As an example of the “frustration” that occurs when agencies ignore FOIA requests, McCraw cited a case the Times filed against the Justice Department last year in which the agency stonewalled an inquiry into how much the Southern District of New York had spent paying legal fees for FOIA lawsuits it lost to requesters.
“It was a straightforward request about a budgetary matter. No FOIA exemption could possibly apply. But weeks passed without a response,” McCraw said.
The Times called the Justice Department repeatedly over a four-month period in pursuit of their request before suing the agency. A U.S. Attorney stepped in after the lawsuit had been filed and “ended up doing what the FOIA officer should have done in the first place,” McCraw said.
“Forcing requesters to litigate to get a response is a waste of government resources,” he said.
Jason Leopold, investigative reporter at Vice News, said the slow pace of FOIA responses creates a “significant problem for investigative journalists.”
“Delays in agency responses to FOIA requests have led to a perception among most investigative journalists that FOIA is not a useful tool,” Leopold said.
The Washington Examiner’s investigative journalist also has a number of FOIA requests pending against various federal agencies that have been ignored for longer than the allowed statutory time limit.
Leah McGrath Goodman, finance editor at Newsweek, noted the absence of reporters or editors from any of the “major Washington papers” at the hearing Tuesday.
“They are concerned about a chilling effect for even speaking out on this,” Goodman said. “This speaks to the seriousness of this matter.”
Goodman lamented the increasing secrecy journalists face when attempting to extract information from a federal agency.
“These days, when I call a federal agency, what I am dealing with can only be compared to an offshore call center, with a constantly rotating cast of people answering the phones, who are trained not to give their names, who can tell you nothing of who is knowledgeable on the topic about which you are researching,” she said.
“If we don’t stand up and speak in one voice as journalists, our jobs will only get harder,” Goodman added.
However, the bureaucratic stonewalling is not limited to reporters, argued Rep. Stephen Lynch, D-Mass.
“We’re facing the same shutdown in transparency that you all are,” Lynch told the panel of reporters.
Sharyl Atkisson, an investigative reporter whose clashes with the federal government have made national headlines, said the lack of consequences for FOIA officers who withhold information excessively creates problems for requesters.
“Even when a court finds a federal agency violated the FOIA law, the government pays any fines and costs with your tax dollars, so there’s no deterrent to get them from repeating the bad behavior,” Atkisson said.
The White House countered criticism of its FOIA record Tuesday by demanding Congress be held to the same open records standards
“Those who are interested in advocating for transparency in government should advocate for Congress being subject to those kinds of transparency measures,” said White House press secretary Josh Earnest.
Neither Congress nor the White House is subject to FOIA requests.
The White House moved to shield its Office of Administration from FOIA requests in March, choosing to do so on National Freedom of Information Day.
