Political Review Hampers FOIA Process, Watchdogs Say

White House delaying FOIA requests

January 27, 2014

Government watchdog groups and reporters say political appointees have been given increased sway over Freedom of Information Act (FOIA) requests in the Obama administration, slowing down the release of public records and introducing political pressure to the process.

Numerous federal agencies have adopted policies to review "significant" or "sensitive" FOIA requests. The White House also frequently reviews FOIA requests it claims contain executive branch materials.

The Washington Free Beacon has had one FOIA request under White House review for the past three months. The Free Beacon requested emails from Health and Human Services (HHS) Secretary Kathleen Sebelius’ previously secret email address concerning the Obama administration’s controversial contraception mandate in June of last year.

"Your request was completed and ready to go in October, but it had White House materials," an HHS FOIA specialist said over the phone in November when asked for an update. "It’s been sent up to them for review."

More than three months later, the Free Beacon received 200 pages of emails, nearly every one redacted.

Some of these policies began under President George W. Bush. However, the trend has accelerated during the Obama administration, which bills itself as "the most transparent administration in history."

Shortly after taking office, the Obama administration quietly beefed up a policy to review FOIA requests to federal agencies that involve White House "equities."

The watchdog group Cause of Action, which published several of these previously unreleased policies, says the increased review not only introduces political concerns to what is supposed to be an impartial process, but also bogs down the already slow FOIA process.

Cause of Action unearthed an April 2009 White House memo, sent to all department and agency general counsels urging them to run public records requests dealing with White House materials, including those from Congress, through the White House counsel’s office.

The practice dates back to at least 1993, but the Department of Justice recommended at the time that the practice only be applied to documents that originated from the White House.

The Treasury Inspector General wrote that the policy has now been broadly expanded, and "none of the document sets we reviewed appeared to originate with the White House."

The Treasury Inspector General also said White House involvement was minimal and found no evidence of bad-faith practices. However, it did note that White House review "was responsible in several cases for adding a significant processing delay."

"The FOIA statute passed by Congress says agencies ‘should promptly produce documents,’" Cause of Action executive director Dan Epstein said in an interview. "Obviously if the requests are getting sent up for further review for months at a time, that's not prompt. One could argue that violates not only the spirit, but letter of the law."

The new, expanded policy was announced months after President Obama and Attorney General Eric Holder issued much-touted directives to agencies that the Freedom of Information Act "should be administered with a clear presumption: In the face of doubt, openness prevails."

Increased delays are not the only problem, Epstein said.

"The White House is not an agency, so it should never by law see any documents produced by FOIA," Epstein said. "It’s largely not subject to FOIA and should never be reviewing those productions."

Meanwhile, agencies across the federal government have increased the review of FOIA requests. Those agencies include the Internal Revenue Service, the Department of Treasury, the Department of Homeland Security, the Department of Defense, the Department of Housing and Urban Development, and the Department of Veterans Affairs.

Last year, Cause of Action also revealed that Department of Defense FOIA officers are prohibited from responding to "significant" public records requests without approval from the Pentagon.

A "significant" request is defined as one where "the subject matter of the released documents may generate media interest and/or may be of interest or potential interest to [Department of Defense] senior leadership."

Jason Leopold, an investigative journalist for Al Jazeera, is one of the more prolific and effective FOIA requesters in media. After Cause of Action identified the Defense Department’s policy, Leopold put in a public records request to see what exactly was being flagged for review.

"These documents I recently received demonstrate to me that the Obama administration has been actively working to thwart the release of documents by politicizing FOIA," Leopold told the Free Beacon. "There's no reason that a political appointee should be involved in the process of reviewing records sought by a requester through the Freedom of Information Act unless the goal is political interference in the process. These types of reviews have made it much more difficult for me to obtain records and have forced me to litigate in hopes of prying loose the material."

The requesters whose public records requests were flagged for review included USA Today, the New York Times, the Washington Post, Steven Aftergood of Secrecy News, and George Washington University’s National Security Archive, which works to collect and publish declassified government documents.

Nate Jones, FOIA coordinator for the National Security Archive, said in an interview that "political calculations have no place in FOIA review."

"While it may be permissible for political appointees to be alerted before a potential newsmaking FOIA release, they should have absolutely no say in the review of FOIA requests," Jones said. "FOIA professionals have a clear set of exemptions defined by statute that they should use to agnostically determine if a document must be withheld from the public."

How much political review such "significant" requests are subjected to varies by agency.

At the Department of Housing and Urban Development (HUD), field offices may not respond to requests deemed "sensitive" without obtaining approval from three HUD offices—the Headquarters FOIA Division of the Office of Litigation, and the Regional Director’s Office, and the head of the relevant program office at the agency headquarters.

According to Cause of Action, HUD Regional Directors and at least eight of 22 heads of HUD program offices are political appointees.

The HUD Inspector General denied there was overt political influence at play. "Political appointees have a limited role in request reviews and no role in the decision-making regarding the documents to be released to the requester," the IG report said.

Nevertheless, Cause of Action said the policy "usurps the authority of career FOIA professionals, delays and/or prevents the release of requested records, and further erodes the public’s trust in government."

The Department of Veteran Affairs issued a memo in October 2013 notifying officers that all FOIA requests to the agency will go through additional layers of bureaucratic review.

"Under no circumstances will a FOIA Officer release records without approval of the designated officials," the internal memo, first obtained by KUOW reporter John Ryan, said.
The Army has a review policy, but it insists it is strictly to alert its public affairs team to possible media coverage that may arise from the disclosures. Other agencies also say political appointees have little or no involvement in FOIA productions.

Additionally, many reporters say federal agencies turn to less official means to stonewall FOIA requests.

Michael Morisy is an investigative journalist and the cofounder of Muckrock, a website that automates Freedom of Information Act requests. Despite the Obama administration’s transparency pledges, Morisy said he has not seen an appreciable change.

"We’ve only been doing this three years ago, and it was bad then, but I’m seeing a lot more procedural pushback, Morisy said. "Stuff like consolidating 20 requests and then saying it’s too broad, or tacking on fees. It’s not true across the board, but it is happening more and more."

The White House did not respond to a request for comment.