Today kicks off Sunshine Week—a week dedicated to focusing on the importance of open government and ensuring accountability for government officials at the federal, state and local levels. To celebrate, EFF is kicking off a new weekly feature to highlight important news regarding government transparency. We will report on important Freedom of Information Act (FOIA) requests filed by EFF and other organizations, discuss important court cases, provide links to new FOIA releases by the government (voluntarily or through lawsuit), and track any progress—or lack thereof—made in important open government initiatives.
In advance of Sunshine Week, some reviews of the Obama administration’s transparency record over the last three years have already been released, and as in previous years, they show little progress towards being the “most transparent administration in history.” As EFF senior counsel David Sobel told Politico, “despite the positive rhetoric that has come from the White House and the attorney general, that guidance has not been translated into real world results in actual cases. … Basically, the reviews are terrible.”
An AP investigation published yesterday found that the administration still has not kept up with the increasing number of people filing FOIA requests and backlogs continue to grow. But the AP noted that the government still responded to 5 percent more requests than the year before and used legal provisions that could be used to keep the documents secret slightly less than in years past.
What else has been going on in government transparency the last few weeks? Let’s take a look:
DOJ’s complicated FOIA relationship
The Justice Department sent out a press release ahead of Sunshine Week declaring that, "Department of Justice Increases FOIA Releases and Reduces FOIA Backlogs." But as The Atlantic Wire reported, open government advocates accuse the Justice Department of making up numbers. "The department's most recent backlog reduction claim appears to be grossly wrong," said Dan Metcalfe, a founding director of the Justice Department's Office of Information and Privacy, who guided the federal government's FOIA practices for more than 25 years.
Attorney General Eric Holder issued a memo in March of 2009 directing agencies, including his own, to undertake FOIA reforms. But a study by The FOIA Project found “little evidence that these new standards are actually being followed.” And in some instances “Justice Department attorneys have become even more aggressive in defending anything that federal agencies choose to withhold.”
Meanwhile, the National Security Archive awarded the Justice Department its Rosemary Award—named after former President Richard Nixon’s secretary, who erased 18-and-a-half minutes of Watergate tapes—for the worst open government performance of 2011.
Holder is expected to further discuss the Justice Department’s open government performance this week.
Major FOIA cases a win for transparency
A federal court dealt a blow to the Justice Department two weeks ago, when it ordered a classified document be released to the plaintiffs—an extremely rare step for a judge to take.
From the Washington Post:
The U.S. Trade Representative has been ordered to turn over a position paper prepared during negotiations for a Free Trade Agreement of the Americas, conducted in the 1990s and 2000s, which never resulted in a deal. U.S. District Judge Richard Roberts ruled Wednesday there were no plausible or logical explanations to justify its secrecy.
This could have ramifications for future cases, as judges have been hesitant to challenge the government’s secrecy procedures, despite the government’s track record of rampant over-classification.
The Post article continued:
In the other two Freedom of Information Act opinions issued at the federal court in Washington, judges ruled that protecting the privacy of congressmen is not enough reason to withhold records about corruption investigations into the lawmakers.
“Cybersecurity” bill’s threat to transparency
A version of the “cybersecurity” bill going through Congress co-sponsored by Connecticut Senator Joe Lieberman could have dire consequences for FOIA and would increase government secrecy. As The Hill reported, a coalition of media advocacy groups warned the bill’s sponsors that "[The bill would] create unnecessary, overbroad and unwise limitations to access of information, including broad exemptions to the Freedom of Information Act (FOIA), and jeopardize the rights of whistleblowers."
National Security FOIA Case
In the Second Circuit Court of Appeals, the ACLU is suing the CIA to release secret cables describing the methods used during Bush era torture practices. The ACLU has been involved in the litigation since 2004, and as a result, the CIA admitted destroying tapes that contained evidence of such interrogations in 2007. As Reuters reported:
The techniques were declared illegal in 2009, so the agency cannot claim the records are still protected from a long-standing Freedom of Information Act request brought by the civil liberties group, the lawyer said.
Other notable releases
In two other notable responses to FOIA requests, the FBI released its files on the recently deceased writer Christopher Hitchens, and the USDA released its emails with the White House in connection with the controversial firing of former USDA employee Shirley Sherrod in 2010.
And a reminder: FOIA requests are relatively easy to file and can be done by non-lawyers. On The Media has a how-to guide on how to file a Freedom of Information Act request about yourself.