April 16, 2012

An Unfulfilled Promise of Open Government

By Katherine A. Meyer, David L. Sobel and Anne L. Weismann

Department of Justice LogoOriginally ran in The National Law Journal - 4.16.12

Several weeks ago, Attorney General Eric Holder Jr. marked Sunshine Week, the annual celebration of government transparency, with a keynote address touting his agency's commitment to openness and asserting that its work over the past three years has produced "meaningful, measurable progress" in improving government compliance with the Freedom of Information Act. As attorneys who each have more than 30 years' experience litigating FOIA cases in the federal courts, our assessment is decidedly less rosy.

In 2009, during his first Sunshine Week as attorney general, Holder issued a memorandum promising, among other things, that DOJ would defend agency decisions to withhold requested information only when disclosure clearly was prohibited by law or would produce actual harm. This significant change reversed an earlier directive by former Attorney General John Ashcroft requiring DOJ attorneys to aggressively defend virtually all agency denials of FOIA requests. Holder said his new policy was intended to effectuate the pro-transparency proclamation issued by President Obama on his first full day in office: to administer the FOIA "with a clear presumption: In the face of doubt, openness prevails."

But DOJ's conduct since these pronouncements leaves us wondering whether Obama and Holder forgot to send their directives to the DOJ attorneys responsible for litigating FOIA cases on behalf of federal agencies. From cases involving records on environmental issues, to those detailing criminal investigations of members of Congress, our experience suggests there is no agency withholding DOJ lawyers won't defend. A recent study conducted by the Transactional Records Access Clearinghouse at Syracuse University, in which researchers were "unable…to identify a single instance of the DOJ declining to defend a FOIA withholding case," supports this conclusion. The breadth of situations in which DOJ will fight to maintain official secrecy includes:

  • A refusal to release logs of White House visits prior to September 2009, despite the policy decision of the Obama White House to post online the vast majority of its visitor logs as of September 2009, based on a claim the records are presidential and not subject to the FOIA. The case is now before the U.S. Court of Appeals for the D.C. Circuit, where the Obama administration has filed a brief almost identical to that filed by the Bush administration.
  • A refusal by DOJ to release records explaining its failure to prosecute numerous members of Congress, despite significant evidence of their criminal misconduct. Now in litigation, DOJ claims the privacy interests of these very public figures mean the agency need not even look for and identify responsive records.
  • An unprecedented refusal by the Treasury Department to grant the Center for Auto Safety a fee waiver for a FOIA request seeking access to e-mail communications between Treasury and the auto industry explaining why the taxpayer-funded Chrysler and GM bailouts provided the auto companies complete immunity from liability for defective cars. When the agency demanded $38,000 in copying fees, the group was forced to sue.
  • A refusal by the CIA to release large portions of an internal history of the 1961 Bay of Pigs operation, completed in 1981, describing events occurring more than 50 years ago. The CIA asserted the document was a "draft" and disclosure would harm its "deliberative process." DOJ lawyers are aggressively defending the agency in court.
  • A refusal by the National Institutes of Health to disclose any documents explaining why the agency refused to act in response to a complaint of widespread violations of the Animal Welfare Act by a NIH-funded research facility. NIH claimed it could "neither confirm nor deny" whether it had generated a single document in response to the complaint without violating the "personal privacy" of the researchers involved, even though agency regulations provide it "will" investigate all such complaints. A lawsuit had to be filed.

While recent statistics suggest agencies overall are decreasing their reliance on the FOIA's exemptions to withhold documents, DOJ is an outlier exception. According to a recent Associated Press analysis, DOJ has increased its reliance on "privilege" claims to withhold more documents describing its behind-the-scenes decision-making process than it did the previous year. And the same DOJ team the attorney general praised for its "outstanding leadership" in fostering transparency issued proposed regulations authorizing law enforcement agencies to falsely tell FOIA requesters they don't possess certain records when, in fact, they do.

Three years ago, we rejoiced when President Obama re-established important open-government tenets, and his new attorney general promised DOJ would vigorously enforce the law's public disclosure requirements. Unfortunately, we are still waiting to see that promise fulfilled.


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