Department of Justice Not Qualified to Be FOIA Ombudsman
The Department of Justice –just months after arguing that the CIA should not release a history of the 1961 Bay of Pigs fiasco because it could “confuse the public”— is now trying, again, to claim the role of “FOIA Ombudsman,” the entity that mediates FOIA disputes between the government and the public.
This simply doesn’t make sense. As Senators Leahy and Cornyn wrote in a letter condemning the DOJ’s maneuver, “As the authors of the OPEN Government Act, we are very troubled that the Department’s proposal is inconsistent with the plain language of that law and with our intent. We are also concerned that the proposed modification to the Department’s records system will create unnecessary confusion for agencies and requesters alike, regarding how FOIA disputes are to be resolved within the Federal Government.”
The Senators wrote this letter to Attorney General Eric Holder in response to a March 19 notice by the Department of Justice, reported by Scott Hodes’s FOIA blog, that it was changing its Privacy Act system of records (read: Privacy Act exemptions) to include some DOJ Office of Information Policy records because of its role as “Ombudsman in disputes between the individuals and federal agencies concerning FOIA requests.” (For more on the Privacy Act, see this.)
Open government advocates have been critical of this seemly unilateral title bump by the DOJ OIP because –quite frankly– the DOJ has an atrocious record protecting the rights of FOIA requesters. Want examples?
Just off the top of my head, during the Obama administration, the DOJ has: defended agencies for simply ignoring the new, crystal-clear fee provisions of the 2007 OPEN Government Act; has made the “odd“ argument to the Supreme Court that FOIA should become a withholding, rather than a disclosure, statute; has proposed regulations that allow lying to FOIA requsters (it’s probably still doing this despite the regs having been beaten back) and denying new media fee waivers (DOJ OIP Director Melanie Pustay later testified that the public “misinterpreted,” “misconstrued,” “didn’t necessarily understand” the regulations); cooked its books to “achieve” a comically high 94.5% FOIA release rate; refused to confirm or deny the existence of a DOJ Office of Legal Counsel memo allowing the assassination of Americans, even as AG Holder made a public case as to why this is legal (without mentioning the killing of Anwar al-Awlaki, so the DOJ could continue to glomar documents about his assassination); proposed a blanket new cybersecurity FOIA exemption during Sunshine Week; and, finally, according to University of Syracuse’s FOIA Project, has reneged on Holder’s memo promising that the DOJ would only defend FOIA denials in cases that would clearly cause harm, the report states that the DOJ has not refused to defend a single FOIA case duing the Obama administration.
Hardly a steller record for an “ombudsman.” (And don’t forget to click the link in the first sentence of this article.)
Worse, this is not the first time that the DOJ OIP has tried to crowd out an independent OGIS. As Suzanne Dershowitz at the Project on Government Oversight (who has been all over this story), explains:
Just weeks after the enactment of the FOIA reform legislation of 2007, President Bush buried a provision in the administration’s fiscal year 2009 budget proposal that would have moved the functions of newly created OGIS from independent NARA to DOJ. When the Bush Administration attempted to defund OGIS at NARA and instead set up the ombudsman role within DOJ, Congress deflected the effort. As Sen. Leahy argued in a 2008 statement, it was important to install the ombudsman outside DOJ:
“When Senator Cornyn and I drafted the OPEN Government Act, we intentionally placed this critical office in the National Archives, so that OGIS would be free from the influence of the Federal agency that litigates FOIA disputes–the Department of Justice.”
Melianie Pustay has served as the Director of the Office of Information Policy since 2007.
After getting onto its feet, OGIS –unlike the DOJ OIP– has been widely praised by frequent FOIA requesters and open government advocates. Under the 2007 OPEN Government Act, OGIS is responsible for 1) reviewing FOIA compliance and policy across the government and reccommending policy changes to the President and Congress, 2) mediating FOIA disputes between requesters and agencies, and 3) serving as ombudsman and soliciting and receiving questions from the public and agencies about FOIA.
(I would also be remiss if I did not mention that the National Archives also houses the Interagency Security Classification Appeals Panel, the finial arbitrator of what can and cannot be released in response to Mandatory Declassification Review requests. ISCAP fully or partially overturns 65 percent of agency classification decisions. Keep up the good work, NARA!)
The biggest knock on OGIS is that (unlike the DOJ) it has no authority to compel negligent agencies to adhere to the FOIA. As Director of OGIS Miriam Nisbet testified this Sunshine Week, the Office of Management and Budget has been stonewalling the FOIA reccomendations that OGIS made to improve FOIA for more than a year. Why? Maybe, *gasp* the federal government really doesn’t want to increase the transparency of its actions?
I, for one, strongly urge Senators Leahy, Grassley, and Conyn to lead their colleagues on the Juciary Committee to support granting OGIS greater authority to compel government-wide compliance with the Freedom of Information Act. The White House, Office of Management and Budget, and Department of Justice have certainly not been successful in implementing President Obama’s broad FOIA reforms. Maybe OGIS, the true FOIA Obudsman and bona fide proponent of openess, could do a better job.
*On a related note, there have been reports that the Department of Justice Office of Information Policy has been quietly dissuading agencies from signing on to a government-wide FOIA portal backed by Office of Government Information Services, the Environmental Protection Agency, and the Department of Commerce. The Department of Justice denies this. Next week, I’ll be writing about why a “one stop” FOIA portal, as invisioned by OGIS, is nessessacy to bring FOIA into the 21st century.
*After I completed writing this post, DOJ spokesperson Tracy Russo told Federal Computer Week that “To alleviate that confusion and to more accurately denote the type of files at issue, the department will amend its notice and refer to the files as ‘compliance inquiries.'” As of now, the notice in the Federal Register has not been amended. Her full statement is here.