Three key players in the governmentwide effort to improve Freedom of Information Act responsiveness were summoned to a House hearing on Wednesday of the annual Sunshine Week.
Though all agreed that outsider requests have shot up since President Trump took office, Republicans and Democrats pressed differing priorities for use of what both consider a valuable tool of transparency.
Their questions to witnesses from the FOIA office at the Justice Department, Interior Department and the Environmental Protection Agency showed that one lawmaker’s pursuit of accountability is another lawmaker’s politics.
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Requests for fiscal 2018 are already up by 90,000 govenmentwide, though final numbers won’t be compiled for perhaps a month, Melanie Ann Pustay, director of Justice’s Office of Information Policy, told a House Oversight and Reform subcommittee. She predicted a new record in public requests for agency documents, adding that the Trump administration in fiscal 2017 reduced the FOIA backlog by about 3 percent.
Her office—the government’s central FOIA coordinator—has been active in setting up a centralized portal for requests, providing new guidance on how requesters can appeal denials and scoring agency performance.
But Pustay told Rep. Carolyn Maloney, D-N.Y., that the Office of Information Policy was not consulted when the Interior Department in December created its own “streamlined” FOIA procedures in response to what it said was an unmanageable surge in requests, many related to the controversial spending and lobbying issues raised by now-departed Secretary Ryan Zinke.
Oversight and Reform Committee Chairman Rep. Elijah Cummings, D-Md., who called the hearing out of concern that the Trump administration is “framing requests for information as obstructions” rather than operating with a “presumption of openness,” cited a letter he recently wrote criticizing Interior’s proposed FOIA reforms. Co-signed by a bipartisan group that included Sens. Pat Leahy, D-Vt.; Chuck Grassley, R-Iowa; and John Cornyn, R-Texas, it cited fiscal 2018 data showing that the Interior Department proactively disclosed 58 percent less data than the last full year of the Obama administration.
Rachel Spector, now in her third month as acting deputy chief Freedom of Information Act Officer at Interior (but with 17 years at the department) said requests this year are up 30 percent since 2016, but a whopping 210 percent in the secretary’s office, as well as “an unprecedented increase in FOIA litigation, she added. “We are not administratively in a position to do the work at this time,” she said, citing the need not just for more staff, but better technology, standardized operating procedures and policies. “I would like to elevate our people who do the work,” Spector said.
She defended the original order by Zinke creating new FOIA office leaders outfitted with authority to decline requests that are too voluminous, based on a new interpretation of case law since a 1990 court ruling that allows agencies to make determinations on requests that would require labor-intensive searches while not making decisions that are “arbitrary or capricious.”
Spector cited a “snowball effect” from “litigated requests that have to be jumped to the head of the queue, which has led to an environment where the department is unable to properly serve the FOIA community.” She acknowledged that her office can take the Justice Department's advice to create a track for “simple” requests that can be responded to within the 20-day requirement, leaving a separate track for “complex” requests.”
Maloney said the approach “seems designed to reject requests that are too large or burdensome,” which goes against Justice guidance, she said. “It seems like an attempt to withhold information. I would encourage you to withdraw it immediately.”
Cummings singled out a report this month from CNN saying that acting Interior Secretary David Bernhardt had claimed that he keeps no personal calendars of his schedule. Yet a FOIA request produced a meeting he took in September 2017 that mentioned no visitors, which contradicted a visitors log showing that he met with Jack Gerard, then-president of the American Petroleum Institute.
Spector replied that her office “proactively” posted Zinke’s calendars on the website due to public interest. She was familiar with the outlines of the Bernhardt calendar issue and said she understood “that the solicitor’s office in the department is working with the records officer in the department to determine what’s occurred there and whether it’s consistent.”
Tim Epp, acting director of the newly centralized National FOIA Office at EPA, spoke of a “substantial backlog” of FOIA requests. “We’re getting 1,000 more each year,” he said, and requests for documents from the administrator’s office—a reflection of the tenure of controversial first Trump administration EPA chief Scott Pruitt—has gone up 415 percent since 2016.
There’s also “an increase in complexity” for his staff of 100 full-time and 100 full-time equivalents, with requests for “all communications, without narrowing them down, and with multiple sub-parts for more documents we must review.”
He praised newly confirmed EPA Administrator Andrew Wheeler for holding a key planning meeting last year to hold FOIA managers accountable on “quality and timeliness,” he said, and a policy memo that has “significantly improved the process.” An example: FOIA offices have been moved to the authority of the general counsel, both at the national office and in the 10 regional offices.
The rise in FOIA demands under Trump was cited by Ranking Member Rep. Jim Jordan, R-Ohio, who pointed to an increase of 44,000 in fiscal 2017, the first Trump year. A key reason for the increase, Jordan said, was “former Obama staffers paid by [billionaire impeachment activist] Tom Steyer” along with Austin Evers, the former State Department official now running American Oversight, which files FOIA requests.
Rep. Mark Meadows, R-N.C., told the witnesses that “FOIA is not a partisan issue. But we continue to miss the statute's” deadlines for responding. “We’re still waiting on things from the State Department under the previous administration,” he complained. “How can you say that is progress? There are too many people in the chain deciding whether the documents get seen by the American public.”