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Gov’t wielded security as a shield to deny the most FOIA requests yet under Obama

Mar 11, 20136 mins
ComplianceData and Information SecurityMicrosoft

Happy Sunshine Week! Despite President Obama's promise for openness, 2012 marked the highest ever year for censored files in response to FOIA requests.

Sunshine is the forecast this week, but it seems like mostly clouds obscured what was supposed to be a transparent view for the entire last year. Recent analysis by the Associated Press found that “the U.S. government, led by the Pentagon and CIA, censored files that the public requested last year under the Freedom of Information Act more often than at any time since President Barack Obama took office.” Secrecy and national security were cited most often, “at least 5,223 times,” despite the fact that Obama promised “during his first week in office that the nation’s signature open-records law would be ‘administered with a clear presumption: In the face of doubt, openness prevails’.”

For example, the Department of Defense began its FOIA annual report [PDF] by stating, “Preparation of this study/report cost the Department of Defense a total of approximately $225,870.59 for the 2012 Fiscal Year.” Holy wowza! Does that include paying for the lights and computers to compile the 74-page report?

The Department of Homeland Security reported [PDF] that it received the most FOIA requests of any federal agency, “a record-setting 190,589 requests.” All together, DHS said it “processed 205,895 requests and reduced its backlog of pending requests from 42,371 to 28,553.” As an example, Homeland Security said the U.S. Citizenship and Immigration Services “received 58% of the Department’s FOIA appeals” yet managed to reduce the response time by 53% in 2012. But the Associated Press reported that the U.S. Citizenship and Immigration Services invoked secrecy-like exemptions more 136,000 times in 2012. If an agency invoked national security or any other exemption more than any time previously since Obama took office to get around giving answers in full, then it makes sense that it should take considerably less time.

After ruling against the ACLU and the New York Times about forcing the government to give legal justifications for killer drone attacks, Federal Judge Colleen McMahon of New York wrote:

I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

The Transactional Records Access Clearinghouse conducted a study in which it found “there were more court complaints asking federal judges to force the government to abide by the Freedom of Information Act (FOIA) during the first term of the Obama Administration than there were in the last term of President Bush.” In fact, the FOIA Project added, an earlier report found that “four years into his administration, and after issuing general guidelines, Attorney General Eric Holder had done little of a concrete nature to implement many of those same guidelines, and that the Justice Department continues to defend whatever information the agencies choose to withhold from the public.”

The AP’s analysis “could not determine whether the Obama administration was abusing the national security exemption or whether the public was asking for more documents about sensitive subjects. Nearly half the Pentagon’s 2,390 denials last year under that clause came from the National Security Agency, which monitors Internet traffic and phone calls worldwide.” And although the Obama administration told agencies not to invoke “the ‘deliberative process exception to withhold records describing decision-making behind the scenes,” it was used 71,000 in his first year of office and 66,353 times in 2012 “to keep records or parts of records secret.”

The State Department answered only 57% of its FOIA requests and “even urgent requests submitted under a fast-track system covering breaking news or events when a person’s life was at stake took an average two years to wait for files.”

When it comes to waiving fees for searching and copying, the government did so 59% of the time. The CIA denied every request to waive fees in 2012. Furthermore, the AP said four agencies failed to release their 2012 FOIA reports to the public: the Office of Science and Technology Policy, the Council on Environmental Quality, the Office of National Drug Control Policy and the Office of Personnel Management.

An LDNews editorial states:

We should have the reasonable expectation to seek government information and have it readily available. We should not expect red tape, runaround or hostility from our public servants. Too often, we get some combination of all three that serves to discourage, sometimes completely, those who are seeking information to which they have every right. Individuals have the right to speak up and speak out about their government. It’s their government. It’s our government. It is not separate and segregated. It is of us, chosen by us and accountable to us. Sunshine laws increase that level of accountability – at least in a perfect system, which we do not have.

The Department of Justice has a page with all the federal agencies and departments that publicly reported their annual FOIA reports for 2012. Today, the DOJ also announced posting the first chapter of the 2013 United States Department of Justice Guide to the Freedom of Information Act…which of all things is about Exemption 2, an exemption from mandatory disclosure.

Happy Sunshine Week!

Sunshine Week Cartoon credits: Top cartoon by Nick Anderson, Houston Chronicle

Bottom cartoon by Ed Hall,

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ms smith

Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.