DOJ Hasn't Found One Improper FOIA Exemption Since 2009

DOJ defends FOIA record to Oversight Committee

Eric Holder / AP
June 11, 2013

The Department of Justice told top congressional investigators Monday it has not challenged a single instance of a federal agency withholding records from Freedom of Information (FOIA) requestors since 2009.

Principal deputy assistant attorney general Peter Kadzik said in a letter to the House Committee on Oversight and Government Reform Monday that while the department’s Office of Information Policy gives guidance to other agencies on proper applications of FOIA exemptions, it has not determined that any of those exemptions were improper in four years.

"Since 2009 … OIP has not received a compliance inquiry where it determined that a withholding was improper due to use of an exemption," Kadzik wrote to oversight chairman Darrell Issa (R., Calif.) and ranking member Elijah Cummings (D., Md.). "Thus, OIP has not prepared any memoranda or official guidance that questioned an agency’s decision to withhold a record."

Kadzik’s letter came in response to inquiries from Issa and Cummings about DOJ’s enforcement of FOIA compliance throughout the federal government.

As previously reported by the Washington Free Beacon, the Obama administration’s transparency goals have largely fallen flat, disappointing many journalists and government transparency advocates.

Attorney General Eric Holder issued a 2009 memorandum instructing agencies to update their FOIA regulations and operate under a "presumption of disclosure." However, government watchdogs say the directive went largely ignored and unenforced.

A government-wide audit performed by the National Security Archive in December first revealed the widespread lack of compliance with the Holder memo.

Fifty-six agencies have not updated their FOIA regulations since the memo was released, the audit found. Additionally, more than half have not updated their regulations since before the OPEN Government Act of 2007.

The Justice Department has not updated its own regulations since 2003.

The audit prompted a letter to the justice Department from Issa and Cummings.

"Given OIP’s role in in implementing compliance with FOIA, the committee seeks information about a number of issues including what many term as outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services," Issa and Cummings wrote in February.

The Justice Department did not respond to oversight’s letter for four months.

The National Security Archive sought the information through a FOIA request in March, but the Justice Department told the NSA the records were exempt from disclosure.

"The fact that this document was blocked from release using a b(5) exemption is a good example of why the DOJ isn't meeting the president's instruction on FOIA," National Security Archive FOIA coordinator Nate Jones told the Free Beacon.

Issa and Cummings wrote to the department again on Monday, saying Justice’s failure to respond "extremely disappointing."

Twenty minutes later, the Oversight Committee received Kadzik’s letter.

Kadzik’s letter defended the department’s enforcement of Freedom of Information Act (FOIA) compliance within the federal government. He said the department expects to publish its new FOIA guidelines later this year.

Kadzik also said the department has made progress on reducing FOIA backlogs and encouraging agencies to post more information online.

Kadzik disputed Issa and Cummings’ assertion that outdated FOIA regulations were a significant problem.

"We do not have reason to believe that requesters could be 'negatively impacted by agency regulations that do not reflect current law,’" Kadzik wrote. "To the extent a regulation was inconsistent with any provision of the FOIA statute, the statute would supersede it."

"OIP believes that what matters is that agencies comply with the statute, and that compliance is not necessarily dependent on whether regulations have been recently revised," he continued.

Daniel Metcalfe, a law professor at the Washington College of Law at American University and the executive director of the Collaboration on Government Secrecy, called the Justice Department's argument "ridiculous." Metcalfe was also a director of the Justice Department's Office of information Policy for 25 years.

"Every FOIA officer knows that application of an agency's own FOIA regulations ia a key part of FOIA administration," Metcalfe said. "For the Department of Justice to act otherwise, particularly as to the new definition of 'news media' contained in the 2007 FOIA amendments, is nothing less than pathetic."

Kadzik also disputed the oversight committee’s claim of excessive use of FOIA exemptions.

"As an initial matter, we respectfully disagree with your letter's characterization of agencies' use of FOIA exemptions as 'excessive.'" he wrote. "We also disagree with your letter's apparent assumption that a higher use of exemptions correlates with fewer discretionary releases."

Kadzik did not address figures cited in Issa and Cummings’ letter, which showed that in 2011 there were 30,000 full denials and 171,000 partial denials of records, and that the Justice Department increased the number of times it invoked exemption 5, which is considered the most subjective of FOIA exemptions.

An August 2012 Washington Post analysis found that early freedom of information progress by the Obama administration "stalled and, in the case of most departments, reversed in direction."

The number of FOIA requests denied in full due to exemptions rose more than 10 percent last year, to 25,636 from 22,834 the previous year, according to the Post’s analysis.

As reported by the Free Beacon, the number of FOIA lawsuits filed against the federal government has increased dramatically under the Obama administration, another point addressed in Issa and Cummings’ letter.

Kadzik said in response that greater use of the administrative appeals process has the potential to avoid future lawsuits.

Overall, Kadzik said his agency believes that "agencies have taken concrete steps to improve their FOIA administration and achieved significant accomplishments in complying with the president and attorney general’s FOIA memoranda."