The celebration of Sunshine Week earlier this month underscored the importance of the continued effort to ensure effective administration of the Freedom of Information Act (FOIA) and its central role for open democracy. Passed by Congress in 1966, FOIA allows citizens to request unpublished records and information from the federal government. Watchdog organizations have long relied on records obtained from FOIA requests to hold the government accountable to public interests. But, the system comes with a plethora of flaws that prevents adequate timeliness and transparency. Endless backlogs, increased usage of exemptions, partially redacted documents, and outright denials leave much to be desired in the administration of FOIA today.
In a long overdue memorandum issued this month, Attorney General Merrick Garland reaffirmed the Office of Information Policy’s (OIP) commitment to the “generous application” of FOIA laws. The OIP is responsible for issuing guidance to federal agencies on how to interpret and comply with FOIA. The DOJ has remained silent on the failures of FOIA for the past thirteen years. The last time the OIP commented on FOIA was during Obama’s “new era of open government,” when Attorney General Eric Holder sent a memo recommending that agencies respond to requests promptly and with a presumption of “openness.” But the DOJ’s rhetoric on transparency did not translate into better compliance with FOIA laws across the federal government over the past decade.
In fact, since 2010, request backlogs have skyrocketed and denials or partial redactions are the norm. Despite a twenty-day statutory deadline, the processing time for simple requests has steadily increased to forty days over the past decade. Meanwhile, requests deemed ‘complex’ by arbitrary metrics puts requesters in prolonged queues, sometimes for years. Chronic understaffing in government agencies contributes to these delays and leaves individuals waiting in a bureaucratic purgatory for information.
Long wait times undermine the intent of the FOIA. As stated in the new memorandum by AG Garland, a “timely disclosure of records is also essential to the core purpose of FOIA.” The disclosure of information that can hold a public official accountable during their tenure is time sensitive. As a result, requesters are increasingly taking federal agencies to court for lack of compliance with FOIA timetables. Those without the resources for legal battles have limited recourse. The costs associated with FOIA requests that are fulfilled can also be a barrier; requesters are routinely charged fees, sometimes as high as hundreds of thousands of dollars, to receive documents.
Nor do requests that are finally fulfilled always meaningfully advance government transparency; a GAO report reveals that between 2012 and 2019, denials increased by ten percent and partial redactions increased by seventy-six percent. FOIA agents are allowed to apply nine discretionary exemptions to prohibit the disclosure of certain information. These protections can be liberally applied to deny information at the behest of private interests. Though exemptions are necessary for protecting sensitive information, they are often abused by agencies to prevent transparency and accountability. One of the most egregious interpretations for withholding is Exemption 5, which agencies have used to exclude embarrassing or unsavory records. AG Garland’s memo directly attacks this interpretation: “Nor may agencies withhold information based merely on speculative or abstract fears or fears of embarrassment.”
The DOJ took the lead this month to reaffirm the nation’s commitment to an open government by recommending increased resources to FOIA offices to deal with backlogs. But its own actions fail to match its rhetoric. At the end of 2021, the DOJ had 49,959 pending requests. The AG’s memo points to the growing discrepancy between agencies’ budget allocations and the responsibilities to fulfill FOIA requests. But, in 2019, the DOJ spent a meager three-tenths of one percent on FOIA administration.
The resulting delays have undermined the public’s ability to scrutinize the DOJ’s decisions as they are unfolding. Last year, watchdog organizations filed dozens of requests investigating Big Tech’s connection to the DOJ via Lisa Monaco, Susan Davies, Jamie Gorelick, and Karen Dunn. Davies and Gorelick, who have defended Facebook and Google, respectively, in antitrust cases, were AG Garland and Big Tech’s favorites for Assistant Attorney General of the Antitrust Division. Another candidate, Karen Dunn, notoriously prepped CEO Jeff Bezos for his testimony at the House Antitrust Subcommittee. Understanding Big Tech’s influence in the DOJ as deliberations over who would be the nominee to lead the Antitrust division was clearly a matter of urgent public interest. Yet, despite that fact, this information was not readily acquired through FOIA requests with the DOJ. Even today, the public does not have adequate insight into how deep Big Tech’s tentacles reach in the DOJ as these requests still have not been fulfilled.
To strengthen public oversight, access to government information is imperative. The purpose of FOIA is to enable an informed electorate to hold the government accountable to public interests. Its mission is failing. Without noticeable efforts to increase capacity and renew a “presumption of openness,” FOIA will continue to fail to live up to its promise for our democracy. Associate Attorney General Vanita Gupta, Chief FOIA Officer at the Department of Justice, quoted James Madison in her remarks celebrating Sunshine Week: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy.” Gupta has the power to halt our descent down that path by first changing her own FOIA office.
Right now, RDP and allied organizations have multiple requests with the DOJ in relation to Big Tech’s antitrust influence. The DOJ can practice what they preach —“ensuring transparency, accessibility, and accountability in government” — by promptly responding to the following long overdue FOIA requests:
- Requested on May 11, 2021 from the Office of Information Policy at the Department of Justice: Email correspondence between Karen Dunn and various members of the Department of Justice (Merrick Garland, Robert Wilkinson, Lisa Monaco, John Carlin, Vanita Gupta, Claire Murray, Matthew Colangelo, Matt Klapper) on the selection of the Assistant Attorney General for Antitrust
- Requested on May 11, 2021 from the Office of Information Policy at the Department of Justice: Email correspondence between Jamie Gorlick and various members of the Department of Justice (Merrick Garland, Robert Wilkinson, Lisa Monaco, John Carlin, Vanita Gupta, Claire Murray, Matthew Colangelo, Matt Klapper) on the selection of the Assistant Attorney General for Antitrust
- Requested on May 10, 2021 from the Office of Deputy Attorney General at the Department of Justice: Lisa Monaco’s email correspondence on the selection of the Assistant Attorney General for Antitrust
- Requested on June 21, 2021 from the Office of Deputy Attorney General at the Department of Justice: Email correspondence between Lisa Monaco and any employee of Apple.
- Requested on June 22, 2021 from the Office of Information Policy at the Department of Justice: Records concerning any recusals of Susan Davies of the Office of Legal Policy.
- Requested on August 13, 2021 from the Office of Information Policy at the Department of Justice: All Notifications of Personnel Action associated with Susan Davies.
- Requested on December 7, 2021 from the Department of Justice: Records on ethics advice given to Department of Justice officials as it relates to individual’s conflicting Big Tech interests. And specifically, ethics advice given to the Chief of Staff to the Deputy Attorney General Anita Singh, whose husband represents Google in antitrust cases at Vinson & Elkins law firm.
Image: “U.S. Department of Justice headquarters, August 12, 2006,” by Coolcaesar is licensed under CC BY-SA 3.0