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House oversight panel opens bipartisan probe on FOIA compliance

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Photo - House Oversight and Government Reform Committee Chairman Darrell Issa, R-CA, and Ranking Minority Member Elijah Cummings, D-MD (left) have jointly addressed a number of pointed questions to the Justice Department on executive branch compliance with the Freedom of Information Act. (AP Photo)
House Oversight and Government Reform Committee Chairman Darrell Issa, R-CA, and Ranking Minority Member Elijah Cummings, D-MD (left) have jointly addressed a number of pointed questions to the Justice Department on executive branch compliance with the Freedom of Information Act. (AP Photo)
News,Mark Tapscott,Watchdog

House Oversight and Government Reform Committee Chairman Darrell Issa and ranking minority member Elijah Cummings have opened what could be the most comprehensive congressional review in three decades of executive branch compliance with the Freedom of Information Act.

Issa is a California Republican, Cummings a Maryland Democrat. Such joint legislative efforts are rare on Capitol Hill, thanks in part to the hyper-partisan atmosphere found in Congress these days.

In a six-page, single-spaced letter dispatched earlier this week, Issa and Cummings posed multiple questions to Melanie Ann Pustay, director of the Department of Justice's Office of Information Policy.

Pustay's office is tasked with enforcing compliance among executive branch departments and agencies with the FOIA.

President Obama issued an FOIA memorandum on his first day in office in which he directed federal officials that the law "should be administered with a clear presumption: In the face of doubt, openness prevails."

Shortly thereafter, Attorney General Eric Holder published new guidelines warning that the Department of Justice would defend agency decisions to withhold documents only when they could demonstrate that "disclosure would harm an interest protected by one of the statuatory exemptions or disclosure is prohibited by law."

"This committee seeks information about a number of issues, including what many term as outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services," said Issa and Cummings in the Feb. 4, 2013, letter to Pustay.

Pustay is in a bit of an awkward situation because, as Issa and Cummings note in their letter, she claimed in testimony before the committee last year that "for the third year in a row, agencies are improving FOIA compliance and increasing transparency."

In their letter, however, Issa and Cummings point to the December 2012 survey results made public by the National Security Archive that found 62 of 99 government agencies have not updated their FOIA regulations as required by a 2009 memorandum from Attorney General Eric Holder.

"In addition, more than half of the agencies surveyed (56 of 99) had not updated their regulations since before the OPEN Government Act of 2007, and 31 agencies have regulations more than a decade old," the congressmen said.

"DOJ's own regulations have not been updated since 2003," they pointedly added.

On the issue of FOIA backlogs, Issa and Cummings said the federal government received 7.8 percent more requests from 2010 to 2011, with a result that more than 83,000 requests remain unfilled.

On the issue of agencies abusing FOIA exemptions, Issa and Cummings pointed to "the use of Exemption 3" as a "particular concern," especially to transparency groups.

Exemption 3 allows agencies to withhold information that can or must be withheld under more than 140 statutes with categories of materials that are excluded from FOIA coverage.

Issa and Cummings pointedly noted as well that "DOJ itself increased the number of times it invoked Exemption 5, for deliberative process, from 1,231 times in 2010 to 1,500 times in 2011."

Transparency advocates cheered the new initiative by the House panel's top two leaders.

"There is frustration on the Hill about the state of FOIA. Congress wants real improvements real fast. And there is still a gap in leadership to improve FOIA within the federal government," said Rick Blum, coordinator for the Sunshine in Government Initiative.

"The Justice Department could do more. The FOIA ombudsman, OGIS, should be given more authority and independence. Nothing has been done by the executive branch or Congress to create a process to review proposed statutory exemptions (under Exemption 3) when they are brought to Congress," Blum said.

Issa and Cummings asked for Pustay's response by Feb. 22, 2013. Pustay was out of the office today and unavailable for comment, according to a spokesman.

Mark Tapscott is executive editor of The Washington Examiner.

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