The Least Transparent Administration

The Least Transparent Administration

How Team Obama stymies freedom of information requests.

From the Wall Street Journal

A federal judge last week excoriated the State Department for sitting on Hillary Clinton’s emails, ordering it to release batches every 30 days. The State Department deserved the rebuke, but then it is merely following the rules laid down by the least transparent Administration in history.

The House Oversight Committee on Tuesday began a two-day hearing into the extraordinary ways the Obama Administration keeps undermining the Freedom of Information Act. Enacted in 1966, FOIA allows anyone to request information about any matter from a federal agency. The agency has 20 business days to respond (10 more in unusual circumstances), and the bar is set deliberately high for what government may withhold or redact.

Most Administrations play games with FOIA, but the Obama White House has turned stonewalling into an art form. A favorite tactic is to ignore or string out the requests. That’s what State did in Mrs. Clinton’s case, claiming it simply couldn’t get around to issuing her emails until next year. A court order was needed to get it to move, and that’s typical across the Administration.

FOIA request backlogs have more than doubled since President Obama took office. The feds received 714,231 FOIA requests in fiscal 2014, and nearly 160,000 weren’t processed within the legal time limit, up 67% from fiscal 2013.

Another trick is to impose sky-high fees. Under FOIA, certain groups (media, educational) are exempt from most fees, so agencies have taken to denying them their legitimate categorizations. The Department of Homeland Security is currently in court for having denied a research institute at Syracuse University educational status, which could cost the institute more than $100,000 for a FOIA request.

Most disturbing are examples of destroying or hiding information. FOIA requests are supposed to be handled by specific FOIA staff as a guard against political types hiding information. Yet the Journal reported in May that Mrs. Clinton’s longtime aide, Cheryl Mills, interfered with FOIA staff at State, at times blocking the release of politically sensitive documents.

In March federal Judge Royce Lamberth blasted the Environmental Protection Agency for mishandling a FOIA request from a conservative group seeking to discover if the agency had delayed controversial regulations in the run-up to the 2012 election. The judge found that FOIA officers and top aides to then-Administrator Lisa Jackson blew off the request until after Election Day and didn’t inform EPA employees of their obligation to retain relevant documents.

“Either EPA sought to evade [a] lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward [the] request,” wrote Judge Lamberth. In 2012 outside groups also discovered that Ms. Jackson had used a second EPA email address under the name “ Richard Windsor,” which may have been set up to stymie FOIA requests.

Congressional investigators have found examples of Obama officials excessively redacting information, or inappropriately shielding it from FOIA disclosure. The Administration is in particular abusing a FOIA exception that allows agencies to redact details that are legally privileged or “deliberative”—meaning that they relate to an agency’s decision-making process.

One example is the EPA’s ideological decision to veto the proposed Pebble Mine in Alaska even before the EPA had conducted a scientific review. A December 2010 email string reveals that numerous EPA employees were working on that veto years earlier, and that several gave advice to an environmental attorney named Jeff Parker who opposed the project and who helped Native American tribes petition against it.

At the end of this string, the EPA’s Richard Parkin, a point man on Pebble, asks EPA attorney Cara Steiner-Riley: “Cara, in terms of the record for the decision making on the 404(c) petitions, are message chains such as this one, protectable from FOIA? should we be concerned with that? Should are subject line include something like Atty/Client Privileged or what ever? Should we just do that routinely?”

Given that most of the emails concerned EPA’s communications with non-EPA players, they are hardly privileged. We assume EPA lawyers recognized the risk of FOIA exposure because the email chain suddenly stops.

President Obama famously vowed to run the “most transparent” Administration in history. Instead he has presided over one that has systematically abused a law intended to assist public disclosure and keep government accountable.