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DOJ OIP Director Pustay testifies that “people misinterpreted,” “misconstrued,” “didn’t necessarily understand,” FOIA regulations allowing DOJ to lie to requesters. Issa report gives DOJ a “D” on FOIA.

March 15, 2012

Melanie Pustay, as she testified to the Senate Judiciary Committee.

On Tuesday, Melanie Pustay, Director of the Department of Justice’s Office of Information Policy –which is responsible for enforcing the FOIA throughout the DOJ and federal government– testified to the Senate Judiciary Committee that she was “happy to have [comments critical of proposed DOJ FOIA regulations] because we can now explain, walk…the public through what we were intending to do.”

She predicted to Senator Grassley that the Department of Justice “will clear that up very easily.”

(Here is the video of the hearing.  Pustay’s testimony begins at the 49 minute mark; she speaks about the regulations at 63:30)

These FOIA regulations –which included a provision that would have allowed the DOJ, in some cases, to untruthfully say that they did not have a record when they actually did– led to a firestorm of opposition from open government groups last autumn.  After the uproar, a DOJ official explained that they had been put on hold because “the department wanted more time to review the new FOIA regulation[s].”

Below are criticisms from the open government community of the proposed regulations, excellently summarized by John Wonderlich at the Sunlight Foundation.  Pustay did not specifically refute any of the ctiticisms, other than to say that the changes were “simply made to streamline, simplify, [and] update” the DOJ FOIA process, and that “some people misinterpreted what we were trying to do, misconstrued some of the provisions, and didn’t necessarily understand some of the fee guidelines.”  

These criticisms are based on thorough comments drafted and submitted by EPIC and praised by other open government groups.  To my eye, they certainly do not appear “misconstrued” or “misinterpreted.”  The proposed regs would have changed DOJ’s FOIA process to:

  • deny requests that aren’t addressed to precisely the correct department (16.3 (a))
  • summarily dismiss requests if officials deem the wording too vague (16.3 (c))
  • automatically apply exclusions to FOIA whenever the government can (16.4 (a))
  • allow hiding what part of the agency is responsible for fulfilling requests (16.4 (e))
  • make it more difficult for requests to be deemed urgent (16.5 (e))
  • remove the ability of the courts to oversee how DOJ applies some exclusions (16.6 (f))
  • make it easier for businesses to declare that information is a trade secret (16.7)
  • allow destruction of records that might be responsive to FOIA requests (16.9)
  • ignore a request for information to be provided in a specified format (16.9(a)(3))
  • disqualify most schools from getting FOIA fees waived (16.9(a)(4))
  • exclude new media from getting fees waived (16.10(a)(6))
  • make it easier to deny fee waivers (16.10(k)(2)(iii))

Pustay’s promise to “explain, walk the public through what we were intending to do” is most welcome; the regulations still look terrible retrograde to me.

Grassley also asked Pustay to respond to the Rosemary Award she and her department received from the National Security Archive for the worst open government performance by any federal agency in 2011.  Unlike Attorney General Holder, she was willing to go on the record, stating that she was, “proud to stand by our record” and that the Department of Justice was a “stellar example.”  She backed this up by repeating the widely discredited FOIA statistics that the DOJ released in response to the Rosemary Award and that were rehashed by Holder at a speech on Monday.  (As we previously reported, Pustay boasted of a sky-high 94 percent FOIA release rate by omitting nine of the reasons that the DOJ used to deny FOIA requests from her calculations. The DOJ’s actual release rate is a much more pedestrian 56 percent.)

On a related note, Deparment of Justice spokeswoman Tracy Schmaler needs to add Congressman Darrell Issa and the House Committee on Oversight and Government Reform to her list of people who don’t know anything about FOIA for criticizing the DOJ’s practices.  

Issa’s report gave the Department of Justice a grade of “D,” and included a special paragraph about the DOJ in its findings which stated that “The Department of Justice, which is responsible for setting FOIA compliance throughout government, produced logs for only three of its components (40 components received the request).”

Melanie Pustay’s Office of Information Policy did submit logs, but they did not show anything close to a 94 percent release rate.  According to the Committee’s Staff Report, over five years the OIP received 1843 requests and released only 253 in full or in part; 61 requests were denied in full.   517 requests were still pending, and a whopping 1025 requests were “closed for numerous legal reasons, usually listed as ‘other’ in the logs.”  That’s an actual release rate of just 19 percent over five years.  Hardly a “stellar example,” I’d say.

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