‘Most Transparent Administration’ Sets FOIA Censorship Record

03_18_FOIA
President Barack Obama waves as he boards Air Force One for a trip to Arizona from Los Angeles on March 13, 2015. The White House is removing a federal regulation that subjects its Office of Administration to the Freedom of Information Act, making government files and records less accessible to the public. Jonathan Ernst/Reuters

In 2014, the Obama administration set a record: It censored or refused to release more government records—accessible to the public through the Freedom of Information Act (FOIA)—than in any preceding year.

In 250,581 cases, or 39 percent of total requests, anywhere from a few words to every word was censored, or access was fully denied. In 215,584 other instances, the government said the records could not be found, decided the request was unreasonable or the requester refused to pay the associated fees. When the government did decide to hand over government files, the process took longer on average than in years past—anywhere between one day and 2.5 years.

The self-proclaimed “most transparent administration” also admitted that its decision to withhold or censor documents was inappropriate under the law in almost a third of cases—but only after the requester challenged the government’s initial decision.

The FOIA, signed in 1966, gives people the right to request and access information from the federal government. Through the FOIA, journalists, historians and curious citizens have uncovered stories like the U.S. government turning down hundreds of millions of dollars in Hurricane Katrina aid from overseas, the Pentagon ignoring a tip alleging 135 cases of fraud amounting to nearly $200 million, shortages in funding hampering cleanup at hazardous waste sites and 17,000 bridges failing to be inspected on schedule, to name a few.

The government is also responding to fewer requests than in previous years. A record 714,231 total requests for information were made in 2014, and the government responded to only 647,142—a 4 percent decrease from the previous year. There is now a backlog of more than 200,000 requests.

Some attribute a portion of the FOIA failures to the government’s decision to cut 375 employees dedicated to finding records—an approximately 9 percent reduction in FOIA staffing. Though the government spent a record $434 million trying to keep up with the influx of requests in 2014, it also dished out $28 million to lawyers working cases where the government was fighting to conceal records.

One of these cases began in 2004 when the American Civil Liberties Union sued the Department of Defense (DOD) for the release of an estimated 2,100 images depicting U.S. military abuse of detainees in Iraq and Afghanistan. After over 10 years of litigation, on Wednesday night DOD lawyers once again asked U.S. District Judge Alvin Hellerstein in New York for more time to decide whether it would adhere to the requirements of his ruling from last August: to review “each and every photograph, individually and in relation to the others” and demonstrate why the release of each would endanger American lives. If they can prove that, Hellerstein said, then DOD is right in keeping the photos classified.

The FOIA is typically thought of as a tool to hold government accountable, but it also allows the public to correct the historical record. As Fred Kaplan argues in Slate, the real trouble with Hillary Clinton using a private email account while conducting State Department business (thereby making her correspondence inaccessible via the FOIA) is that “our history is vanishing into the ether. Major decisions—cataclysmic events—are happening all around us, but their causes may never be known.”

There have been numerous attempts over the years to improve the FOIA process. Most recently, the FOIA Improvement Act was introduced in the Senate in February. If passed, the act would codify a “presumption of openness” when federal agencies consider releasing documents. The government could withhold records only if their release would violate the law, or disclosing would create an identifiable harm.  

In the meantime, however, the FOIA seems to be under attack. On Monday, the White House announced it was exempting itself from FOIA requests. People have been using the FOIA for 30 years as a way to understand the inner workings of the White House, but when it became “politically inconvenient” to release information, Tom Fitton told USA Today, it became policy to reject requests for White House records. Ironically, Monday was also National Freedom of Information Day, as well as the start of Sunshine Week—a weeklong celebration of access to public information.