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Sunshine Week: FOIA use grows but transparency declines despite Obama promises

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Photo - President Obama signs executive orders Jan. 21, 2009, on government transparency and FOIA, saying "for a long time now, there's been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over." (AP Photo)
President Obama signs executive orders Jan. 21, 2009, on government transparency and FOIA, saying "for a long time now, there's been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over." (AP Photo)
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When The Washington Examiner’s Mark Flatten submitted a Freedom of Information Act request to NASA last August, what he sought seemed clear enough.

Earlier in the year, the White House Office of Management and Budget ordered all federal departments and agencies to track spending on employee conferences and post the information on their official web sites.

Flatten, a member of the newspaper’s Watchdog investigative reporting team, asked NASA and dozens of other government operations for documents showing their compliance with the OMB directive. Here’s how NASA FOIA officer Jeanne Yeager responded:

“Based on the information provided in your request, it is unclear what records you are requesting. Without more information regarding the specific type of documents you are requesting or the originator of those documents, we are unable to process your request.”

Such exchanges have become all too common in recent years despite President Obama’s promise shortly after taking the oath of office on Jan. 21, 2009, that his would be “the most transparent administration in history.”

Thanks to the FOIA, the transparency issue will be widely discussed this week as journalists, non-profit advocates, academics and others celebrate Sunshine Week with speeches, news reports and features, forums, surveys and panel discussions across the country. The week is timed to coincide with the March 16 birthdate of First Amendment author James Madison, who was also the country's fourth president. Go here for a complete list of Sunshine Week events.

The FOIA – signed into law by President Lyndon Johnson in 1966 – is annually among the most frequently utilized federal laws, with millions of individuals filing requests for information like a relative’s military record, documents about government contract bids or historical records.

Citizens filed more than 644,000 FOIA requests with federal agencies in 2011, the most ever, according to the Department of Justice’s Office of Information Policy.

Even though they only file a small percentage of all FOIA requests at major federal agencies – about six percent according to a Coalition of Journalists for Open Government study - legions of editors and reports say FOIA struggles are a regular occurrence for them, and often an unpleasant, costly one.

That is the reality despite the law’s requirement that all government documents be available on request unless they fall under one or more of nine exemptions such as privacy, law enforcement and commercial trade secrets.

Most conflicts regarding FOIA requests hinge on whether an exemption should be applied to documents being sought by journalists. When such conflicts can’t be resolved at the administrative level, they often end up in federal court.

A recent study by the Transactional Records Access Clearinghouse at Syracuse University found a 28 percent increase in the number of FOIA suits filed during the last two years of Obama’s first term, compared to the last two years of President George W. Bush’s second term, from 562 to 720 cases.

Sometimes, such FOIA suits make headlines as one now is at the heart of a growing scandal that has seen the resignation of the U.S. Environmental Protection Agency’s Administrator, Lisa Jackson, and one of her regional administrators, James Martin.

At issue in the case is use of a fake name – “Richard Windsor” – by the two EPA leaders on a government email account to conduct official business, which could hide such documents from agency officials searching for records required to respond to FOIA requests.

When EPA denied Competitive Enterprise Institute Senior Fellow Christopher Horner’s FOIA for copies of related emails last year, he filed suit in the U.S. District Court for the District of Columbia.

Jackson announced her resignation after the court ordered EPA to release the emails, which totaled more 12,000, in four separate groups of about 3,000 each. Martin resigned after the second group was released last month.

No matter the outcome of the Richard Windsor scandal, journalists and activists will keep on fighting for more official transparency because, as the Project on Government Oversight’s Danielle Brian told The Washington Examiner, “it is our job to push back and crack open those closed doors that hide corruption, mismanagement and other wrongdoing.”

In fact, transparency in government has become one of the very few major issues in Washington’s hyper-partisan atmosphere that commands support from across the political spectrum.

When The Washington Examiner asked three well-known advocates of increased transparency in government for Sunshine Week comments, their responses were remarkably similar despite their being from significantly different backgrounds and political frames of reference.

Brian is executive director of POGO, which, when it was founded in 1981, focused its resources on exposing waste and fraud in the Department of Defense. In 1991, the group expanded its work to include ferretting out waste, fraud and corruption throughout the federal government.

She called transparency “the most powerful tool citizens have to ensure government is operating ethically and effectively.  Although there are some things that should remain secret, the government tends to err on the side of over-classifying and hiding behind secrecy to keep nosy citizen activists and journalists out of its business … This week we celebrate our common interest in promoting good government though transparency.”

Similarly, National Rifle Association President David Keene, emphasized that “governmental transparency is vital because rational decision-making in a democratic society hinges on the ability of citizens to know what their government and election officials are up to and why. A free people, a free press and a free society are at risk when government withholds or manipulates information vital to such decision-making.”

For many years, Keene, as chairman of the American Conservative Union, was almost unique among conservative activists with an interest in transparency issues, often being the lone voice from the Right in coalitions with liberals seeking reforms in Congress.

Keene is not nearly so lonely these days, thanks in great part to Judicial Watch President Tom Fitton, who has grown his organization by turning it into one of the most feared FOIA litigators and one of the law’s most outspoken advocates.

Judicial Watch officially describes itself as “a conservative, non-partisan educational foundation that promotes transparency, accountability and integrity in government, politics and the law.”

So it is not surprising that Fitton is highly critical of Obama, telling The Washington Examiner that "the Obama administration has created a transparency crisis.  Never has so much money been spent with so little accountability.  This administration stonewalls and withholds information with astonishing contempt for the federal open records law."

But Fitton’s disgust with Obama’s FOIA record reflects less an ideological perspective than devotion to Judicial Watch’s official motto, which is “because no one is above the law.”

That motto captures something all Sunshine Week supporters would likely endorse.

Mark Tapscott is executive editor of The Washington Examiner. He was inducted into the First Amendment Center's National Freedom of Information Act Hall of Fame in 2006. 

 

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Mark Tapscott

Executive Editor
The Washington Examiner