Members of a House oversight committee were outraged during a bizarre hearing Tuesday in which congressmen listened to journalists discuss how government agencies intentionally botched formal requests for information.
The reporters told the House Committee on Oversight and Government Reform of numerous instances where agencies needlessly delayed, denied or redacted Freedom of Information Act requests. The FOIA guarantees the public access to all government documents, subject only to nine exemptions such as for privacy, commercial privilege and national security.
The journalists also suggested that government employees who violate the FOIA law should be prosecuted. There are currently no consequences to bureaucrats who don’t abide by the statute that has been on the books since 1966.
FOIA is a “pointless, useless shadow of its former self,” said former CBS investigative reporter Sharyl Attkisson.
“Our role of objectively reporting the facts has been increasingly blocked,” said Newsweek Finance Editor Leah Goodman. “There is a motive for unresponsiveness and unaccountability.”
Committee chairman Jason Chaffetz, R-Utah, noted that President Obama promised at the outset of his first term that his administration would champion an unprecedented level of openness in the federal government.
Chaffetz held up an April 2009 memo that ordered agencies to allow the White House to review any requested documents that involved “White House equities.” There is no provision in the FOIA for the assertion of such a White House privilege.
“I don’t care who’s in the White House, it’s wrong, it’s wrong, it’s wrong,” Chaffetz shouted.
New York Times Assistant General Counsel David McCraw noted that lawsuits are often an essential part of the FOIA process to force agencies to release documents.
“Last year, I filed eight FOIA lawsuits on behalf of The Times,” McCraw said. “Much of that litigation was driven not by actual disagreement about legal issues, but in response to unacceptable delay by agencies. Forcing requesters to litigate to get a response is a waste of resources.”
Attkisson said that agencies spend substantial amounts of taxpayer dollars on such lawsuits in their efforts to withhold information from the public.
Mark Meadows, R-N.C., noted that he knew of no FOIA officers that were fired for giving out too much information.
“There is no penalty to routinely violate the law,” said Vice Investigative Reporter Jason Leopold.
He and Attkison both recommended that violators of FOIA law should face prosecution.
McCraw said the problem was an issue from the top down where agencies executives require FOIA officers to withhold as much information as possible.
“The leaders for many of those agencies are permitting staff to allow those deadlines to pass,” McCraw said. “This is a management problem.”
One way agencies often deter journalists seeking government documents is by simply ignoring their requests.
“Agencies take the 20 day time limit as a suggestion, rather than a rule,” Chaffetz said. Federal agencies are required to at least acknowledge receipt of FOIA requests within 20 business days of receiving them.
McCraw suggested that FOIA officers be required to communicate regularly with requesters and to provide status updates.
Newsweek’s Goodman shared with the committee a quip that is often repeated among journalists: “If you want to know what you’re writing about in three years, file a FOIA.”
Chaffetz also said that the exemptions to deny requests “are far narrower than agencies claim.”
The journalists noted that one exemption – (B)5, which lets agencies withhold documents if it was part of their decision-making process – has become the biggest FOIA headache for reporters.
“The use of that exemption has increased astronomically,” said Leopold.
The hearing will continue Wednesday at 9 a.m.