US House hearing on transparency misses the open government forest for the FOIA trees

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When sunshine is applied to government, what’s revealed can be determined by the eye of the beholder. After the 115th Congress neglected oversight of open government, the U.S. House Oversight Committee held a hearing on the Freedom of Information Act and transparency in the Trump administration this past Wednesday during Sunshine Week. I attended and annotated the hearing on Twitter, which you read in the thread embedded below:

You can watch the full hearing in the YouTube video embedded below, which in of itself embodies the progress made in opening government to the public over the past decade, building upon C-SPAN and congressional websites. As was the case at other Sunshine Week events in DC this year, Republicans and Democrats both praised open government. There, however, the equivalence ends – but you wouldn’t know it from some of the news coverage. Government Executive reported that “FOIA Requests Are Up In Trump Era, But Parties Disagree on Whether That’s Good.”

That might have something to do with which party is in power. It might also have to do with how administration that eschews core constitutional values and norms around transparency, with a leader who describes journalists as the enemy of the people, oversight as “presidential harassment,” and forces civil servants and interns to sign NDAs that restricts their First Amendment rights. The hearing featured a lot of debate about record-breaking increases in the volume of Freedom of Information Act requests without enough informed of the quality of those responses or the broader issues around FOIA capacity, culture or policy. Spending time digging into the statistics publicly available at FOIA.gov also obscured a bigger picture, as Nate Jones from the National Security Archive explained in the Washignton Post: that this Department of Justice is not leading on open government nor enforcing compliance with the Freedom of Information Act, despite a provision in the FOIA that gives it the legal tools to sanction political appointees and civil servants.

As Lauren Harper commented, The Department of Justice needs to do a much, much better job on FOIA.

Some of this didn’t go unremarked in the hearing: as KOLD reported, Representatives Grijalva and Cummings pressed agencies for more information on new FOIA policies and highlighted a lack of public responsiveness. Poor compliance with FOIA got some attention on the Hill, with members of the Oversight Committee probing Interior’s proposed FOIA rule.

That’s genuinely useful, meaningful oversight, but the Department of Justice didn’t face tough questions from the House about why the White House Office of Management and Budget removed a cross-agency priority goal for the Freedom of Information Act across the U.S. government — or why it simply buried a release to one, release to all FOIA policy that it took public comment upon, if, as Office of Information Policy Director Melanie Pustay told the committee, the agency supports proactive disclosure.

It was also frustrating to see the Department of Justice tout the new FOIA.gov while not being held accountable for lobbying against it just five years ago.

Perhaps these issues might have been raised in the Senate, but the Senate Judiciary Committee did not hold a hearing, as in the past, nor offer any public explanation for why.

In fact, the most significant contribution that Chairman Lyndsey Graham made to open government this Sunshine Week in 2019 was when he blocked a resolution that the House passed calling for special counsel Robert Mueller’s report on his investigation of President Donald J. Trump’s campaign to be made public.

In that light, the continued interest that the other ranking members of the Senate Judiciary is excellent news for oversight of the FOIA and transparency in the United States government. In a letter to the Justice Department’s Office of Information Policy, the senators noted the negative trends in compliance that are apparent to the rest of Congress, the press and public, from a lack of responsiveness to requests to long delays, record numbers of FOIA lawsuits, and a continued “culture of secrecy.”

“Compliance with FOIA’s statutory requirements, including the 2016 amendments, is necessary to ensure that the public can fully exercise its right to know,” U.S. Senators Chuck Grassley, Patrick Leahy, John Cornyn and Dianne Feinstein wrote, requesting written answers from the Department of Justice to the following answers by April 2017 — including some of the questions that were not posed in the House.

  1. The FOIA Improvement Act of 2016 requires “the operation of a consolidated online request portal that allows a member of the public to submit a request for records … to any agency from a single website.” We were pleased to see that on March 8, 2018, the Department “released the first iteration of the National FOIA Portal on FOIA.gov.” A year later, however, the public still cannot submit FOIA requests to many agencies and departments, including some that are annually the largest recipients of FOIA requests. For example, as of the date of this letter, an attempt to submit a request to U.S. Customs & Border Protection, U.S. Citizenship & Immigration Services, or the State Department results in an alert to the requester that “[c]urrently, this agency’s FOIA system is not linked to FOIA.gov.”
  2. What is the status of OIP’s efforts to ensure that members of the public may use the FOIA portal to submit a request for records “agency from a single website”?
  3. Please provide a complete list of departments or agencies whose FOIA systems are currently “not linked to FOIA.gov.”
  4. What specifically is causing the significant increase in FOIA lawsuits filed against agencies in FY 2018? In other words, what violations of FOIA’s requirements are being cited most by litigants? And what specific steps is OIP taking to reduce the number of FOIA requests that end up in litigation?
  5. What specific steps, beyond its 2014 guidance on the subject, is OIP taking to reduce the delays caused by inter-agency consultations and referrals of FOIA requests?
  6. What specific steps is OIP taking to ensure that agency FOIA regulations are consistent with the letter and spirit of FOIA, including the 2016 amendments?
  7. The FOIA Improvement Act of 2016 requires agencies to make records available in an electronic format if they have been requested three or more times. According to a 2018 audit by the Government Accountability Office, one agency responded that it does not comply with this statutory requirement because “it does not have the time to post all such records that have been requested.”
  8. Should agencies be able to disregard FOIA’s statutory requirements if they “do not have the time”? And on what authority do agencies rely to ignore statutory law?
  9. What specific steps is OIP taking to ensure that agencies are complying with the letter and spirit of the proactive disclosure requirements of the FOIA Improvement Act of 2016?
  10. How would stricter compliance with the proactive disclosure requirements of the FOIA Improvement Act impact FOIA request processing delays and backlogs?
  11. The FOIA Improvement Act of 2016 codified a “foreseeable harm” standard, to ensure that agencies may only withhold information from the public if the agency “reasonably foresees that disclosure would harm an interest protected by an exemption[.]” This change in the law tells agencies to make openness and transparency, instead of knee-jerk secrecy, their default setting. OIP plays the central role in ensuring government-wide compliance with the “foreseeable harm” standard.
  12. Has OIP published any government-wide directives concerning the implementation or proper interpretation of the “foreseeable harm” standard? If not, why?
  13. What specific steps is OIP taking to ensure government-wide compliance with the “foreseeable harm” standard?
  14. What is the current status and anticipated finalization date of the Department’s “Release to One, Release to All” policy? Why has this policy not been finalized yet?

Don’t miss the forest of open government for the trees

On the one hand, the evidence is clear that the Freedom of Information Act is getting worse under the Trump administration, along with broader issues around open government in the U.S government: an analysis of FOIA data from the Department of Justice by the Associated Press found that 78% of Freedom of Information Act (FOIA) requests last year received censored files or no documents at all. Answers to the questions posed by the Senate will shed more light on what’s happening at the component in the Department of Justice dedicated to the FOIA. Congress should also perform FOIA data calls to all of the agencies. Representative Alexandria Ocasio-Cortez’ line of questioning during the hearing focusing on these statistics was a notable and potentially useful line of questioning, in terms of what the government learned itself.

But it’s also important to note as Sunshine Week comes to end that while the Trump administrations failings on FOIA and open government are real, self-evident & well-documented, this Quartz headline that “the U.S. government has never been more secretive than it is right now” and lede asserting that “the Trump administration is the least transparent in American history” is misleading.

Why? As was true when assessing the mixed record of the Obama administration on open government, after President Barack Obama (in)famously declared his intention to run the most transparency government in history, comparing the state of affairs in 2019 to 1919 or 1819 is difficult. The reason is that United States had no sunshine laws in the federal government before the 20th century. That means that comparing FOIA statistics from year to year is a narrow window.

Starting in the 1940s with the Administrative Procedure Act, Congress enacted a panoply of statutes that have mandated more transparency in American governance, from the Freedom of Information Act in 1966 to the Federal Advisory Committee Act of 1972, which mandates open meetings.

There were a host of reforms after Watergate, including Government in the Sunshine Act of 1976, Inspector General Act of 1978, Ethics in Government Act of 1978 (check out oge.gov/open), and the Presidential Records Act of 1978.

More recently, the Lobbying Disclosure Act of 1995, Electronic Freedom of Information Act of 1996, the Honest Leadership and Open Government Act of 2007, and the 2016 reform of the FOIA which put the presumption of openness into the statute further strengthened the web of transparency laws in place. In January 2019, President Trump signed a historic open government data act into law.

It’s certainly fair to say that when the Trump administration has had a choice to be transparent in any way that would hold itself accountable — as opposed to its political opponents – it has chosen secrecy, from the president’s tax returns to White House visitor logs to ethics waivers to many examples of online censorship the Sunlight Web Integrity Project has documented. This is an administration marked by unprecedented presidential mendacity, historic corruption, and a contempt for the public’s rights to know and the essential role the press plays in democracy.

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What this year’s Sunshine Week showed is that despite administrative chaos, maladministration and corruption in this White House, sunshine in government endures in DC and at every level of government, despite multiple threats to statutes and the deaths of local newspapers.

The American people can and should expect more commitment and action on open government from Congress, the courts and, especially, our federal government.

We should be proud of the legislators, regulators, and civil servants who continue to provide the information to the public that is necessary for self-government, and the judges, advocates and journalists who pry secrets from agencies when they seek to keep fraud, waste, or abuses of power from the public eye.

Our enormous, resilient government is not as open as it should be, but the arc of recent history is bending in that direction. This spring, our nation is still waiting to see whether the report of the special counsel investigating the president’s campaign is disclosed and acted upon.

The world is watching, too, to see whether we can pass one of the greatest tests for open government and the rule of law in modern history: if we can hold accountable a corrupt, illiberal president. As the glow of Sunshine Week fades, we must hope that its spirit endures.

One thought on “US House hearing on transparency misses the open government forest for the FOIA trees

  1. Pingback: How federal agencies can make better /open government webpages | E Pluribus Unum

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