WashingtonExaminer 2014: It’s Sunshine Week, so perhaps some enterprising White House reporter will ask press secretary Jay Carney why President Obama rewrote the Freedom of Information Act without telling the rest of America.
The rewrite came in an April 15, 2009, memo from then-White House Counsel Greg Craig instructing the executive branch to let White House officials review any documents sought by FOIA requestors that involved “White House equities.”
That phrase is nowhere to be found in the FOIA, yet the Obama White House effectively amended the law to create a new exception to justify keeping public documents locked away from the public.
The Greg memo is described in detail in a new study made public today by Cause of Action, a Washington-based nonprofit watchdog group that monitors government transparency and accountability.
How serious an attack on the public’s right to know is the Obama administration’s invention of the “White House equities” exception?
“FOIA is designed to inform the public on government behavior; White House equities allow the government to withhold information from the media, and therefore the public, by having media requests forwarded for review. This not only politicizes federal agencies, it impairs fundamental First Amendment liberties,” Cause of Action explains in its report.
Equities are everything
The equities exception is breathtaking in its breadth. As the Greg memo put it, any document request is covered, including “congressional committee requests, GAO requests, judicial subpoenas and FOIA requests.”
US gov’t sets record for failures to find files when asked
WASHINGTON (AP) – When it comes to providing government records the public is asking to see, the Obama administration is having a hard time finding them.
In the final figures released during President Barack Obama’s presidency, the U.S. government set a record last year for the number of times federal employees told disappointed citizens, journalists and others that despite searching they couldn’t find a single page of files requested under the Freedom of Information Act. In more than one in six cases, or 129,825 times, government searchers said they came up empty-handed, according to a new Associated Press analysis.
The FBI couldn’t find any records in 39 percent of cases, or 5,168 times. The Environmental Protection Agency regional office that oversees New York and New Jersey couldn’t find anything 58 percent of the time. U.S. Customs and Border Protection couldn’t find anything in 34 percent of cases.
“It’s incredibly unfortunate when someone waits months, or perhaps years, to get a response to their request – only to be told that the agency can’t find anything,” said Adam Marshall, an attorney with the Washington-based Reporters Committee for Freedom of the Press.
A Justice Department spokeswoman, Beverly Lumpkin, said the administration answered more records requests and reduced its backlog of leftover requests, which should be considered good work on the part of the government in fulfilling information requests.
The AP’s annual review covered all requests to 100 federal agencies during fiscal 2015. The administration released its figures days ahead of Sunshine Week, when news organizations promote open government and freedom of information.
It was impossible to know whether more requests last year involved non-existent files or whether federal workers were searching less than diligently before giving up to consider a case closed. The administration said it completed a record 769,903 requests, a 19 percent increase over the previous year despite hiring only 283 new full-time workers on the issue, or about 7 percent. The number of times the government said it couldn’t find records increased 35 percent over the same period.
“It seems like they’re doing the minimal amount of work they need to do,” said Jason Leopold, an investigative reporter at Vice News and a leading expert on the records law. “I just don’t believe them. I really question the integrity of their search.”
In some high-profile instances, usually after news organizations filed expensive federal lawsuits, the Obama administration found tens of thousands of pages after it previously said it couldn’t find any. The website Gawker sued the State Department last year after it said it couldn’t find any emails that Philippe Reines, an aide to Hillary Clinton and former deputy assistant secretary of state, had sent to journalists. After the lawsuit, the agency said it found 90,000 documents about correspondence between Reines and reporters. In one email, Reines wrote to a reporter, “I want to avoid FOIA,” although Reines’ lawyer later said he was joking.
When the government says it can’t find records, it rarely provides detailed descriptions about how it searched for them. Under the law, federal employees are required to make a reasonable search, and a 1991 U.S. circuit court ruling found that a worker’s explanation about how he conducted a search is “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims” that a better search might have turned up files.
For a deeper and accurate summary, go here.
