Is FOIA reform finally at the tipping point? The federal Freedom of Information Act was designed to give citizens prompt access to information about their government. Instead, it’s a bureaucratic nightmare, a vast black hole of years-long delays and heavily censored documents.
In recent weeks, a trifecta of powerful federal judges, each acting independently, has blasted the Obama Administration’s FOIA delays. It is never good to anger a federal judge. Angering three over the same issue is unprecedented.
All three judges sit on the influential U.S. District Court for the District of Columbia. In Judge Richard Leon’s court, he slammed the State Department for a four year delay in responding to the Associated Press’s FOIA requests for records about former Secretary of State Hillary Clinton and top aides. State Department lawyers, Judge Leon complained, were answering him with “convoluted gobbledygook” about the records.
“I want to find out what’s been going on over there” at the State Department, Judge Leon said. “I should say, what’s not been going on over there.” Later, according to a report in Politico, the judge snapped when State Department lawyers indicated there would be further delays: “Have it by next week. Have it by next week when we have our hearing. Do you hear me?”
Matters also were heated at the courtroom of Judge Rudolph Contreras. In a hearing concerning a Judicial Watch lawsuit about email records from Mrs. Clinton’s tenure as secretary of state, the judge warned the State Department that it will “have to answer for” any destruction of the documents.
Ordering that some records related to the Clinton Foundation be turned over by mid-August, Judge Contreras warned: “If documents are destroyed between now and August 17, the government will have to answer for that, and, you know if they don’t want to do anything out of the ordinary to preserve them between now and then, they can make that choice. I will allow them to make that choice, but they will answer for it, if something happens.”
Last week, Mrs. Clinton’s email problems accelerated with a referral by State Department and intelligence community inspectors general to the Justice Department requesting an investigation of possible mishandling of classified information.
Meanwhile, in the courtroom of Judge Tanya Chutkan, Judicial Watch is suing the Department of Health and Human Services on behalf of journalist Sharyl Attkisson for FOIA records related to the HealthCare.gov website. The government unfolded a plan for producing FOIA records over a fourteen-year period — 500 pages of documents every other month.
Judge Chutkan seemed not able to believe what she was hearing.
As Attkisson reported on her website, Judge Chutkan lit into the Justice Department attorney defending the case. “I could do 500 pages in an afternoon,” the judge said. “So I don’t understand this….This is like a 14-year schedule. This is unacceptable. So you need to tell me exactly what’s involved so I can assess this production rate of 500 pages every two months, because that’s not going to fly.”
It may take fed up federal judges to lead the charge on FOIA reform. Mrs. Clinton’s stonewalling aside, the problems with FOIA are obvious. FOIA offices, housed within every government department or agency, are underfunded and understaffed. FOIA personnel get no respect from their colleagues. FOIA rules on what not to disclose are routinely abused by bureaucrats with something to hide or simply no desire to cooperate with the law. The system is in ruins.
At a Congressional FOIA hearing last month, noted the Washington Post, House Oversight Committee witnesses “delivered a powerful verdict that federal agencies do a terrible job of responding to document requests — across the board, just about all the time.”
But FOIA reform isn’t brain surgery. A fed up Congress could simply remove one-quarter of one percent of each department’s budget and use it to set up an independent FOIA agency with real teeth. Then FOIA would finally have what Washington respects most: power and money.
First published at the Daily Caller, July 27, 2015