03.30.2012 0

Sunshine week overshadowed by reality

By Mark Wohlschlegel — The week of March 12, 2012 was Sunshine Week in our nation’s capital, but not all is sunny in Washington, D.C.  Sunshine Week was designed to be a national initiative to promote dialogue about the importance of open government and freedom of information.

President Obama promised that his administration would be “the most open and transparent in history.”  The Obama Administration continues to use flowery rhetoric about how it is making immense strides in “government openness “with the Freedom of Information Act (FOIA), but reality casts a great shadow over these claims.

At Americans for Limited Government (ALG) we use the FOIA process to scrutinize alleged inconsistencies, to investigate outside influence of government policy, and to determine how much U.S. tax dollars (federal money) are being spent on non-essential projects that don’t make sense.

That being said, ALG has significant experience dealing with a wide number of federal agencies with the FOIA process.  What we have found is that for all the Administration’s hype on having “improved [the] current FOIA process,” it is still a slow, time-consuming and frustrating process filled with many roadblocks.   Instead of finding “a presumption of openness,” we have run into a lot of the following:

  • Very little communication by the federal agency after initial confirmation of receiving our FOIA, except what we initiate.
  • Quibbling over fee waiver requests – many times with the same agency despite having been granted them in the past.
  • Clarifying and amending requests for agency officials who seem to want to limit the work they have to do.
  • Going weeks, months, and in some cases years without receiving any denial or documents from an agency.
  • Hearing excuses, some legitimate, some not for why documents are taking so long.
  • Dealing with the liberal use of redactions based on FOIA Exemptions without a full explanation.
  • Reams of hard copy documents returned when electronic versions were requested.

For example, we have one such ongoing “FOIA soap opera” with U.S. Department of Treasury right now.   On Nov. 18, 2011, we requested records relating to the International Monetary Fund (IMF).  After receiving an initial confirmation letter, we heard nothing despite leaving numerous phone messages with the Treasury’s FOIA Office.  Finally, on Jan. 12, 2012, we filed an appeal based Treasury’s failure to abide by statutory deadlines.  To our surprise, documents were provided on Jan. 26, 2012, followed by a letter that they were now dismissing our appeal as moot.

Upon examination of the documents, we found that out of the forty-two (42) pages they sent, a total of nine were non-duplicative documents – inferring that despite known IMF spending activity, there are no significant records of communication on this activity during the two and half year period we asked for documents.  Furthermore, it was unclear if other Department offices were conducting searches.  ALG sent a letter inquiry on Feb. 1, 2012 asking for a full and complete response.  Treasury responded that they had only searched one office.  As such, we have a second appeal now with Treasury questioning the adequacy of their search.  To date, it is still pending.

Based on these experiences, we find it hard to relate to the overly positive language used by many in the Obama Administration.  For instance, consider Attorney General Eric Holder’s “Sunshine Week” speech given last week.  In it he waxed success and progress.

He said, “[T]hree years ago this week, I issued a memorandum to federal department and agency heads mandating changes in the way we approach, release, and distribute information.  They’ve established a presumption of openness. And they have led agencies to manage the FOIA process more efficiently and effectively.

“This commitment – and the unprecedented efforts that we’ve launched to fulfill it – underscores the sacred bond of trust that must always exist between a government and all those we are privileged to serve.  This is what drove the President – on his first full day in office – to call upon the Department of Justice to guide other agencies in the faithful implementation of the Freedom of Information Act, and to ensure compliance with both the letter – and the spirit – of this law.”

This sounds ironic coming from a department…

We are supposed to believe that this Department is the “guide to other agencies in the faithful implementation of the Freedom of Information Act?”

This hits pretty close to home for us here at ALG, since our oldest pending FOIA just so happens to be with the Department of Justice – filed on Oct. 26, 2009!

We here at ALG want to believe the President’s commitment to open government and transparency, but from what we’ve seen, it’s been all talk and little change.

ALG Editor’s Note: Americans for Limited Government expects to release a website for sharing and tracking FOIA requests it has made in the near future.

Mark Wohlschlegel is legal analyst with American for Limited Government.

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