US sets new record for withholding government files

At the same time, the Obama administration has decided to eliminate Freedom of Information Act regulations for the White House Office of Administration, which handles FOIA requests.

Seth Perlman/AP/File
Illinois state Rep. Jack Franks (D) speaks at the Illinois State Capitol in Springfield Ill., Dec. 2, 2014. The Associated Press has found that the Illinois attorney general’s office has yet to respond to 2,800 appeals for help in Illinois's public-records disputes. Given the state’s lack of money to add Freedom of Information Act lawyers, Representative Franks suggested the idea of imposing sanctions on government agencies that don’t comply with open-access laws – something that might eventually lead to fewer denials and therefore fewer appeals.

As the United States marks Sunshine Week, an annual celebration of open government and access to public information, some eyebrow-raising disclosures have been made. White House representatives said the administration would continue to be “the most transparent administration in history” – despite eliminating Freedom of Information Act (FOIA) regulations for the White House Office of Administration. And the government released figures indicating that, for the second consecutive year, the Obama administration had withheld more documents than ever before.

White House press secretary Josh Earnest said Tuesday that the decision to repeal the Office of Administration’s FOIA regulations was an administrative change that will not affect the administration’s compliance with the FOIA. But transparency advocates say that even if the decision won’t affect how FOIA requests are processed, the decision to change the rules during Sunshine Week shows that transparency and FOIA compliance are not a priority for the administration.

“I don’t think it will change how the government will respond in the short term," says Rick Blum, director of the Sunshine in Government Initiative. "However, it undercuts all of the other efforts that this administration has made to make the government more transparent and to promote open government.” 

Since its establishment by the Carter administration in 1977, the Office of Administration has been the federal agency responding to FOIA requests. And under the Carter, Reagan, George H.W. Bush, and Clinton administrations, the office regularly complied with FOIA requests. The George W. Bush administration also complied with requests for six years, until it opposed a request for documents related to the destruction of 22 million e-mails in 2007, USA Today reported, which on Tuesday broke the story about the rules change. 

In 2009, a federal appeals court found that the Office of Administration was exempt from FOIA "because it performs only operational and administrative tasks in support of the president and his staff and therefore, under our precedent, lacks substantial independent authority."

The Obama administration says that the decision to lift the regulations subjecting the office to the FOIA was nothing more than an effort to "clean up the books" in response to the appeals court ruling. It also says that the office will continue to release key information on a voluntary basis.

Transparency advocates aren't satisfied.

“It will have no impact on actual FOIA processing, but it does show that there is no one in the White House who cares about FOIA because it’s terrible messaging,” says Nate Jones of the National Security Archive, a nongovernmental research institute. “They don’t have a powerful figure in the White House with a FOIA portfolio.”

Meanwhile, using government data, the Associated Press reported that even when the Obama administration did hand over documents last year, it took longer to turn over files than ever before.

The government figures, which were released Tuesday and cover all requests to 100 federal agencies during the 2014 fiscal year, show that FOIA requests have become more popular than ever. Citizens, journalists, businesses, and others made a record 714,231 requests for information, AP reported. But the press agency found shortcomings.

“The government more than ever censored materials it turned over or fully denied access to them, in 250,581 cases or 39 percent of all requests. Sometimes, the government censored only a few words or an employee's phone number, but other times it completely marked out nearly every paragraph on pages,” AP reported.

Additionally, the government has acknowledged that in almost a third of the cases, its decision to withhold or censor documents was improper according to the law. But it made such determinations only when the decisions were challenged.

Transparency advocates say there is actually much more information being withheld from the public. 

“There is a tremendous universe of information that is not being properly contested and is still being withheld,” Mr. Jones says. According to data from the Department of Justice, less than 2 percent of responses to FOIA requests were appealed in 2013.

Experts say these latest figures demonstrate a need for a watchdog that will ensure each agency complies with FOIA requests. 

“The administration needs someone in the White House or the Department of Justice who will be a real beat cop who goes from agency to agency,” Jones says.

Says Mr. Blum: “The annual statistics need to be looked at closely to help us understand different parts of the FOIA process that need to be fixed. It’s great that citizens are filing more requests. Now the government should commit resources to filling these requests. It needs someone there asking each and every agency.”

What many seem to agree on is that the timing of the decision to eliminate the FOIA regulations for the White House Office of Administration is less than ideal.

When asked during a press conference why the decision was made during Sunshine Week, Mr. Earnest said, "I can tell you that no one, certainly in my office, was involved in the decision that was made as it relates to the timing of this announcement.”

“It’s unfortunate they made this move on Sunshine Week,” Blum concludes. 

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