March 9, 2016 FOIA, Government, In The News, News

It Took a FOIA Lawsuit to Uncover How the Obama Administration Killed FOIA Reform

Photo: ABC News

By: Jason Leopold, Vice News, 3/9/2016

The Obama administration has long called itself the most transparent administration in history. But newly released Department of Justice (DOJ) documents show that the White House has actually worked aggressively behind the scenes to scuttle congressional reforms designed to give the public better access to information possessed by the federal government.

The documents were obtained by the Freedom of the Press Foundation, a nonprofit organization that supports journalism in the public interest, which in turn shared them exclusively with VICE News. They were obtained using the Freedom of Information Act (FOIA) — the same law Congress was attempting to reform. The group sued the DOJ last December after its FOIA requests went unanswered for more than a year.

The documents confirm longstanding suspicions about the administration’s meddling, and lay bare for the first time how it worked to undermine FOIA reform bills that received overwhelming bipartisan support and were unanimously passed by both the House and Senate in 2014 — yet were never put up for a final vote.

Moreover, a separate set of documents obtained by VICE News in response to a nearly two-year-old FOIA request provides new insight into how the Securities and Exchange Commission and the Federal Trade Commission (FTC) also tried to disrupt Congress’s FOIA reform efforts, which would have required those agencies to be far more transparent when responding to records requests.

The disclosures surface days before Sunshine Week, an annual celebration of open government, and a renewed effort by the House and Senate to improve the FOIA by enacting the very same reforms contained in the earlier House and Senate bills — the seventh attempt in at least 10 years by lawmakers to amend the transparency law. But the administration is again working to derail the legislation, according to congressional staffers.

The FOIA Oversight and Implementation Act of 2014, co-sponsored by then–House Oversight and Government Reform Committee Chairman Darrell Issa and ranking member Elijah Cummings, would have codified into law Obama’s presidential memorandum, signed on his first day in office in 2009, that instructed all government agencies to “adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.” (Attorney General Eric Holder issued a set of guidelines to federal agencies a couple of months later that explained how the presumption of disclosure should be implemented.)

Additionally, the legislation called for the implementation of a centralized online portal, overseen by the Office of Management and Budget (OMB), to handle all FOIA requests and required government agencies to update their FOIA regulations. The bill unanimously passed by a vote of 410-0, one of the few pieces of legislation during President Barack Obama’s tenure to receive bipartisan support.

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But the administration “strongly opposed passage” of the House bill and opposed nearly every provision that would have made it easier for journalists, historians, and the public to access government records. The White House claimed it would increase the FOIA backlog, result in astronomical costs, and cause unforeseen problems with processing requests, according to a secret six-page DOJ set of talking points turned over to the Freedom of the Press Foundation along with 100 pages of internal DOJ emails about the FOIA bill.

“The Administration views [the House bill] as an attempt to impose on the Executive Branch multiple administrative requirements concerning its internal management of FOIA administration, which are not appropriate for legislative intervention and would substantially increase costs and cause delays in FOIA processing,” the talking points say. “The Administration believes that the changes… are not necessary and, in many respects, will undermine the successes achieved to date by diverting scarce processing resources.”

Remarkably, the talking points go on to say that the DOJ opposed the administration’s own instructions that called on agencies to act with the “presumption of openness” as stipulated in Holder’s guidelines and Obama’s presidential memo. The DOJ, they said, would “strongly oppose” any attempts to codify it into law. Instead, the DOJ touted a December 2013 “National Action Plan” to “modernize” FOIA and make it more efficient, saying that effort went far enough. But that had little to do with forcing the government to be more transparent.

“If this memo reflects thinking of the White House, than I have to question their commitment to transparency,” said Anne Weismann, the executive director of The Campaign for Accountability and a leader in the effort to reform FOIA. “The notion that these changes are going to increase the FOIA backlog, increase costs, and increase problems with FOIA is ludicrous. The breadth of their objections and lack of evidence to back up their claims and their absolute opposition to codifying Obama’s memo expose the lie that is the administration’s policy…. If the president and this administration believes in their stated FOIA policy they should be supporting an effort to codify it.”

Notably, the DOJ’s talking points also shed light on the ongoing turf war between the Office of Information Policy and the independent Office of Government Information Services (OGIS), also known as the FOIA ombuds office, which provides requesters with mediation services. Congressional efforts to expand OGIS’s role, as cited in the bill, were interpreted by DOJ to be an encroachment on its powers. The DOJ went so far as to claim that empowering another agency to improve FOIA administration was unconstitutional.

DOJ spokeswoman Beverley Lumpkin told VICE News that the Justice Department is “committed to the Freedom of Information Act and dedicated to improving transparency and open government.” When asked about DOJ’s opposition to FOIA reform, she said, “It is not uncommon for subject matter experts to provide feedback on technical aspects of proposed legislation and potential unintended consequences.”

When the Senate took up its version of the 2014 FOIA reform bill, co-sponsored by Democratic Senator Patrick Leahy and Republican Senator John Cornyn, it was much stronger than the House’s version. Importantly, the Senate bill would have transformed the most overused and abused FOIA exemption — there are nine total — that government agencies routinely cite to deny requesters access to records: Exemption 5, also known as the deliberative process privilege, which covers “inter-agency or intra-agency memorandums or letters,” drafts, and attorney-client records.

Exemption 5 is referred to by open government advocates as the “Withhold it because you want to exemption.”

The discretionary exemption has been cited to justify the withholding of countless documents, such as a half-century old CIA history of the Bay of Pigs invasion and an internal CIA study on the agency’s torture program, on grounds that they are not “final decisions.” The reform bill would have authorized the release of records that fell under Exemption 5 after 25 years and it would have introduced a “foreseeable harm” standard, requiring government agencies to demonstrate the harm that would result from the disclosure of records; currently, they need only cite a specific FOIA exemption to justify the withholding of records. It too was unanimously passed by the Senate.

But everything died in the House in December 2014 after then–Speaker John Boehner failed to bring up the final version for a vote. Rumors soon began to surface that the DOJ, the SEC, and the FTC, prodded by banking lobbyists, worked behind the scenes and lobbied lawmakers not to bring the legislation up for a vote. The DOJ used the same talking points to sound alarm bells about the Senate bill.

“This FOIA reform bill was incredibly modest, had already been watered down, and had the unanimous support of both parties — something that, in today’s political climate, almost never happens,” said Trevor Timm, executive director of the Freedom of Press Foundation. “Transparency advocates have been very cynical of the Obama administration’s claim that they’re the ‘most transparent ever’… but the fact that they opposed virtually every aspect of this bill is sadly a new low.”

Tracking down hard evidence to back up claims about the administration’s intervention proved to be extremely difficult. So the Freedom of the Press Foundation and VICE News used the very law at issue — FOIA — to obtain answers.

“It took the Freedom of Information Act to provide evidence of what many felt but could not prove: that the Department of Justice ‘strongly opposes’ fixing the Freedom of Information Act,” said Nate Jones, the director of the FOIA project at George Washington University’s National Security Archive. “The released talking points make clear that on the one hand, DOJ ensures agencies do the bare minimum to comply with the FOIA’s requirements and paints a misleadingly rosy picture during congressional testimony, while [on] the other it secretly works to block Congress’s attempts to release more records to more people more quickly.

“It’s no wonder FOIA requests take decades to process and tens of thousands of pages are improperly withheld when the DOJ — the agency envisioned in 1966 to be the watchdog tasked to “encourage compliance” — is actually working to stymie reform.”

Last year, in testimony before the House Oversight and Government Reform Committee, Melanie Pustay, who heads the DOJ’s Office of Information Policy (OIP), which is supposed to ensure that all government agencies adhere to Holder’s guidelines, told lawmakers that the DOJ is doing a great job with FOIA. She graded the agency five out five on “presumption of openness.”

“Five out of five, on an effective system in place for responding. Proactive disclosure. Are you kidding me?” Committee Chairman Jason Chaffetz asked Pustay. “The Department of Justice gives themselves a five out of five on proactive disclosure. You really think anybody in the world believes the Department of Justice is the most — they’re at the top of their game, they got an A-plus, five for five? Do you really believe that?”

“I do,” Pustay responded. “I absolutely do.”

“You live in la-la land,” Chaffetz responded. “That’s the problem.”

[I also testified before the committee last year and discussed the problems with the FOIA, pointing to OIP’s failure to enforce Holder’s guidelines.]

Emails that were included with the talking points turned over to the Freedom of the Press Foundation also show that most congressional staffers were not heeding DOJ’s dire warnings and did not bow to the intense lobbying campaign by DOJ officials in the Office of Legislative Affairs about what would happen if the bill were passed.

But one lawmaker made a fuss: Senator Jeff Sessions. The deputy chief counsel for Sessions, Rachael Tucker, who had placed a hold on the 2014 bill, said the Republican lawmaker was concerned that reforms to Exemption 5 would harm attorney-client privilege if documents potentially including that info could no longer be withheld after 25 years. The email makes clear that Sessions’ opposition was partially the result of the DOJ’s lobbying, and that the Senate would not support any attempt by Sessions to try and strip the provision from the bill.

A Senate Judiciary Committee report from February 2015 noted that the DOJ and the National Association of Assistant United States Attorneys contacted Sessions and objected to the FOIA reform legislation, specifically the overhaul to Exemption 5. Moreover, during a House Oversight and Government Reform Subcommittee hearing that month, Representative Elijah Cummings said the DOJ had contacted lawmakers to voice opposition to the FOIA reform bill.

Tucker emailed an official at the DOJ’s Office of Legislative Affairs and asked, “I’m wondering if extending the [25-year] sunset would be something DOJ could support. Maybe making it 40 years or something? Do you have any suggestions or thoughts?”

A response from DOJ, if there was one, was not included in the cache of documents. Sessions eventually relented and removed the hold and voted in favor of the Senate bill. But congressional sources told VICE News he’s now the lone lawmaker who placed a hold on the new version of the Senate FOIA reform bill, raising the very same concerns about Exemption 5 that he did two years ago. It’s unclear why he is holding up passage of the bill again. A spokesperson for the senator did not respond to requests for comment.

VICE News filed separate FOIA requests with the DOJ, FTC, and SEC seeking documents about conversations officials may have had with members of Congress about the 2014 FOIA reform bills. It took more than a year to obtain responsive records from the agencies. In the case of the FTC, it required VICE News to file a formal appeal challenging the integrity of the agency’s search after the FTC initially turned over just a handful of documents. Eleven months after we lodged the appeal, the FTC said it found an additional 900 pages of emails and produced those.

As if to underscore why Congress has been aggressive in its attempt to reform Exemption 5, the FTC redacted 95 percent of the emails — citing Exemption 5.

Still, there are a few noteworthy takeaways. The emails reveal that the the regulatory agency raised red flags about the FOIA reform bill, issuing warnings to lawmakers — notably Democratic Senator Jay Rockefeller — about how its passage would stymie the FTC and SEC’s ability to protect American consumers from financial fraud and other abuses.

Before the Senate sent its version of the FOIA reform bill to the floor for a full vote, Rockefeller placed a hold on the legislation, claiming that unnamed “experts” with whom he’d consulted told him parts of the bill would “greatly aid corporate defendants and undermine law enforcement efforts,” one of his staffers told VICE News at the time.

The emails reveal that Rockefeller reached out to government agencies and requested they articulate their concerns about the bill in a joint letter, suggesting there was far more coordination between the executive branch and Congress on efforts to thwart passage of the bill than had been previously reported.

Additionally, the emails show that Jeanne Bumpus, director of the FTC’s Office of Congressional Relations, wrote to her colleagues and said she contacted Leahy and left messages for his staff “reiterating serious concerns and seeking more information abut the timing and content of the [FOIA] bill to be considered.”

A spokesperson for Leahy, who has historically been a staunch advocate for transparency, said the Senator was unavailable to comment. When the Senate bill was not put up for a vote, he released a statement saying, “In a political climate as divided as this, I had hoped that we would come together in favor of something as fundamental to our democracy as the public’s right to know.”

Jones told VICE News that the the emails “confirm what we knew at the time: that some at the FTC and other ‘independent regulatory agencies’ with little knowledge of FOIA used vague, incorrect warnings at the last minute to try to kill the FOIA bill.”

“Throughout the correspondence — ironically marred with huge exemption 5 redaction boxes — there is not a single tangible example of how this bill could harm the FTC or other agencies mission,” Jones said. “[There is] just vague scare phrases such as ‘compromise public interest investigatory or litigation strategies’ or ‘make it more difficult to obtain information from sources.'”

Prior to the passage of the Senate bill, a handful of lawmakers who sit on the Senate Banking Committee said they were informed that the reform bill would loosen the FOIA’s Exemption 8, which protects information pertaining to financial regulatory institutions. But it was all a ruse, prompted by the SEC, to force the Senate to specifically state on the record that Exemption 8 would not lead to the release of more information about financial institutions that would otherwise be protected from disclosure under Exemption 8.

In one email VICE News obtained, the SEC’s chief FOIA officer, John Livornese, remarked to a colleague after the Senate memorialized its position in a report, “Just when you thought exemption 8 couldn’t get any stronger,” meaning the SEC could continue to withhold information under that exemption.

Chaffetz, who co-sponsored the latest FOIA reform bill passed by the House in January, told VICE News in a statement that the Obama administration’s promises of transparency have never materialized.

“President Obama promised the ‘most transparent’ administration in history. I see no evidence to support that statement,” Chaffetz said. “Time and time again this administration has aggressively thwarted efforts for a more open and transparent government.”