By SUZANNE DERSHOWITZ
Earlier this week, Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) wrote a strongly worded letter to Attorney General Eric Holder, urging the Justice Department to clarify its recent notice of proposed changes to the Department's Privacy Act and Freedom of Information Act (FOIA) system of records.
DOJ’s proposed modifications included several references to the Department’s Office of Information Policy (OIP) serving as “Ombudsman” in disputes between federal agencies and individual FOIA requestors. This designation would seem to clash with Leahy and Cornyn’s OPEN Government Act of 2007, which specifically established the Office of Government Information Services (OGIS) within the National Archives and Records Administration (NARA) as FOIA ombudsman.
Just weeks after the enactment of the FOIA reform legislation of 2007, President Bush buried a provision in the administration’s fiscal year 2009 budget proposal that would have moved the functions of newly created OGIS from independent NARA to DOJ. When the Bush Administration attempted to defund OGIS at NARA and instead set up the ombudsman role within DOJ, Congress deflected the effort. As Sen. Leahy argued in a 2008 statement, it was important to install the ombudsman outside DOJ:
When Senator Cornyn and I drafted the OPEN Government Act, we intentionally placed this critical office in the National Archives, so that OGIS would be free from the influence of the Federal agency that litigates FOIA disputes–the Department of Justice.
DOJ’s new modifications would cause unnecessary confusion among agencies and requestors while undermining OGIS’s authority as ombudsman. OGIS currently serves as a bridge between requestors and agencies, particularly in situations where clear, direct communication has been lacking. Under the law, OGIS has a clearly defined mandate to review agency FOIA compliance and policy and mediate disputes between persons making FOIA requests and agencies.
DOJ’s new proposal isn’t an isolated incident—time and again, DOJ’s actions have been at odds with President Obama’s directives for increased government openness and transparency. This is especially troubling because DOJ is responsible for setting the standards for FOIA compliance throughout the federal government.
For instance, on March 15, Rep. Darrell Issa (R-CA), Chairman of the House Committee on Oversight and Government Reform, issued his report card on the federal government’s efforts to track and manage FOIA requests. The report found that “The majority of the entities that did not produce logs were located within the Department of Justice, where only 3 out of 40 entities submitted their logs to the Committee.” OIP received special mention in the Committee’s negative evaluation—of the 1,843 FOIA requests OIP received in 5 years, only 253 received either full or partial grants of records. The Committee concluded that the FOIA logs at DOJ are inadequate. DOJ earned a letter grade of D, indicating that the agency is unwilling or struggling to demonstrate transparency about their own efforts to manage and respond to FOIA requests.
In a Senate Judiciary Committee hearing on FOIA during Sunshine Week, Sen. Grassley (R-IA) pointed out that the National Security Archive, a research institute at George Washington University, gave DOJ the infamous Rosemary Award for worst open government performance in 2011. Grassley also noted that OIP had proposed a dozen regressive FOIA regulations, including a rule revision that would authorize government agencies to lie to FOIA requestors by denying the existence of sensitive records altogether, which POGO strongly opposed.
In addition, POGO and our partners have raised concerns that some in DOJ have discouraged other agencies from participating in the innovative multi-agency FOIA portal that OGIS, EPA, and the Department of Commerce are spearheading. In a House Oversight and Government Reform subcommittee hearing last week on moving FOIA into the 21st century, OMB Watch’s Sean Moulton said the EPA portal features “far outstrip” those being developed by other agencies. Director of OIP Melanie Pustay defended FOIA.gov’s usefulness as a “comprehensive FOIA website” during the first panel.
POGO thinks FOIA.gov is useful in that it educates the public about FOIA, but is not currently designed as a viable alternative to the centralized multi-agency portal. It is time for DOJ to get on board with a portal that can provide broad public access to any previously released documents and one location for filing and tracking all FOIA requests.
POGO, Citizens for Responsibility and Ethics in Washington (CREW), OpenTheGovernment.org, and other partners will soon submit comments on DOJ’s system of records notice, echoing Sens. Leahy and Cornyn. We strongly urge the Department to reconsider and clarify the purpose behind this proposal to effectively rewrite the rules and remove references to OIP as ombudsman in FOIA disputes.
We are also still waiting for DOJ to correct its practice of claiming that records don’t exist. While the Department abandoned the proposed rule authorizing agencies to lie to requestors, it also admitted that it is a current and long-standing practice to respond with this untruth to avoid disclosing sensitive investigations. DOJ needs to get this and its FOIA practices right before attempting to expand its role, creating unnecessary overlapping authority with another agency, and injecting even more confusion into the FOIA process. It is time for DOJ to do more to strengthen, rather than hinder, the President’s policies of openness.
Suzanne Dershowitz is POGO’s public policy fellow.
Image via dctim1.