Earlier this afternoon the Department of Justice and Attorney General Eric Holder celebrated Sunshine Week by highlighting the federal government's progress "in realizing the promise of the Freedom of Information Act." Holder and four additional speakers pointed out what they called positive steps taken in 2011 to reduce request backlogs, improve processes, and operate under a "presumption of openness." This positive news was tempered by today's Associated Press report that indicates that the federal government is still struggling with FOIA backlogs.
In touting the Department's accomplishments, Holder looked toward the future and presented some improvements to FOIA currently being instituted by the DOJ. He announced the DOJ will start posting monthly logs of FOIA requests made to senior leadership offices. The logs will "publicly identify the subject matter and disposition of each request" in an attempt to make it easier for people to locate information they are interested in. The department is also working on a new way for the public to submit and track FOIA requests to the DOJ's senior leadership online.
Additionally, the department is rolling out two new tools in an attempt to make FOIA.gov more responsive; a simplified government-wide search function and an integrated FOIA request process.
Today and throughout the week, we have an important opportunity to showcase and celebrate the progress that’s been made here at the Department – and all across the federal government – in realizing the promise of the Freedom of Information Act, and making good on what President Obama has called “a profound national commitment to ensuring an open government.”
This commitment – and the unprecedented efforts that we’ve launched to fulfill it – underscores the sacred bond of trust that must always exist between the 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.
In response, three 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. Since then, these guidelines have shifted the way our entire federal government operates. They’ve established a presumption of openness.And they have led agencies to manage the FOIA process more efficiently and effectively, said Holder.
He goes on to say, "the Department has achieved a release rate of more than 94 percent of requests where records were processed for disclosure. And we released nearly 80 percent of these records in their entirety." (Eric Holders full remarks can be found here.)
However, the National Security Archive has strongly fired back saying Holder used discredited statistics at the event. They also note the DOJ has attempted to issue reductive regulations, waged a "war on leakers", and increasingly relied on several exemptions throughout Holder's tenure.
Attorney General Eric Holder kicked off Sunshine Week 2012 by rehashing widely discredited statistics released by the Department of Justice after it was awarded the Rosemary Award by the National Security Archive for the worst open government performance by a federal agency in 2011.
In his speech, Holder stated that Department of Justice's work on FOIA was "nothing short of remarkable," but –just as his recent speech on the legality of assassinating Americansdid not mentionthe "targeted killing" of al-Awlaki– Holder did not mention or refute his department's Rosemary Award, or the reasons the DOJ was awarded it. His department's open government failures included the DOJ Office of Information Policy's attempt to issue new regulations that (among other steps backward) would haveallowed the agency to lieto FOIA requesters and exclude online media from news media reduced fee status; the "odd" argument made to the Supreme Court by the DOJ's Assistant Solicitor General that the Freedom of Information Act should become a withholding rather than a disclosure statute; and the DOJ's "war on leakers" which has surely had a chilling effect upon –to use Holder's own words– "the sacred bond of trust which must always exists between the government and those we are privileged to serve."
Holder did, however, repeat claims from aDepartment of Justice press releaseposted just after being awarded the Rosemary Award, boasting of a 94 percent FOIA release rate and a 26 percent reduction in FOIA backlog. ANational Security Archive analysisof the DOJ's release rate shows that the DOJ excluded nine of the eleven reasons that the Department denied documents to requesters from its count. These include denials based upon: fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits); "no records" (very frequently the result of inadequate searches by DOJ employees); and requests "improper for other reasons" (which ostensibly include the "can neither confirm nor deny" glomar exemption).
What Holder did not mention was that when the full eleven reasons for denial are factored in, the Department of Justice's "release rate" is a much more believable 56.7 percent. Melanie Pustay, head of the DOJ Office of Information Policy since 2007, also spoke. She boasted that Department of FOIA officials are using "new and creative" methods to improve FOIA output. Unfortunately, these methods appear to include "new and creative" math that obfuscates the true number of documents released under FOIA in an attempt to portray the Department of Justice in a better light. Josh Gerstein recently reported in Politico that one other "new and creative" method that the Federal Bureau of Investigation used to reduce its backlog was to simply close some requests even though the requesters "may not always have been notified."
The four other speakers at the event were: Carolyn Colvin, Deputy Commissioner at the Social Security Administration. Austin Schlick, General Counsel and Chief FOIA Officer at the FCC. Darren Ash, CIO and Chief FOIA Officer at the Nuclear Regulatory Commission. Robert Howarth, Deputy Director of Correspondence, Document Production and FOIA Management at the Department of Interior.