'There is a big problem': Senators unite to slam FOIA compliance

The often bitterly divided Senate Judiciary Committee had little difficulty Tuesday finding consensus that the nation’s premier transparency law, the Freedom of Information Act, isn’t working well.

“My conclusion from this is: there is a big problem,” Sen. Dianne Feinstein (D-Calif.) said during an oversight hearing on the federal government’s ongoing struggle to implement the records-access law in a timely way.

Sen. Jon Ossoff (D-Ga.) said he believes the half-century-old statute allowing journalists, advocacy groups and members of the public to request federal agency records appears to be failing to live up to its original ambitions.

“My impression is the chasm is massive — it’s vast,” he said. “We’re talking about timelines that are worse than routinely unmet, but almost never met. We’re talking about massive backlogs.”

One particular focus Tuesday was on the impact of the coronavirus pandemic on federal agencies’ compliance with FOIA.

Senators heard good and bad news on that front: As the pandemic spread, new requests were down, but agencies fell even further behind in processing them. During fiscal year 2020, which covered the first six months of the pandemic, agencies received 8 percent fewer requests but processed 12 percent fewer, according to the Government Accountability Office.

That caused a spike in the already substantial backlog of requests, which reached 142,000 at the end of September 2020, up 18 percent from a year earlier, GAO official James McTigue said.

McTigue said some agencies faced challenges getting FOIA processing staff set up to telework when the pandemic broke out and others had paper records stranded at offices workers weren’t allowed to enter. Others, such as the FBI, would not authorize telework for FOIA processing due to security concerns and therefore had to establish protocols for workers to come into the office, which created a greater delay, he said.

A GAO report issued Tuesday found that agencies are not fully complying with a requirement to post certain types of records online. The panel’s ranking member, Sen. Chuck Grassley (R-Iowa), pressed the Justice Department’s top FOIA official on what happened to a pledge President Barack Obama’s administration made in 2016 to post most responses to FOIA requests on agency websites under a so-called “release to one, release to all” policy.

The DOJ official, Babak Talebian, declined to commit to broad implementation of such an approach but said officials are moving in that direction.

“We conducted a pilot….There were some challenges,” Talebian said. “We are still encouraging agencies to make proactive disclosures, and some agencies are implementing that at a ‘release to one, release to all’ level….We want to continue working towards a time where agencies can have the capacities to get to a point where they can release more and more records on their websites, getting to a ‘release to one, release to all.’”

The federal government’s FOIA ombudsman, Alina Semo, said some agencies are still sluggish in posting completed requests online because of concerns they’ll receive complaints that the records aren’t accessible to the disabled.

“There’s an inherent tension, and agencies are sometimes technologically hamstrung in posting large amounts of data,” Semo said.

Grassley also pressed Talebian on why it took Attorney General Merrick Garland until earlier this month to issue written guidance urging agencies to lean in favor of disclosure when answering FOIA requests. There was no explicit discussion at the hearing of how the Trump administration implemented the transparency law, but a similar memo from then-Attorney General Eric Holder during the Obama administration emerged in March 2009.

“Why did it take so long?” Grassley asked.

“In his first full day of his first full week in office, the attorney general joined us for Sunshine Week to provide public remarks to reinforce the importance of FOIA,” said Talebian, director of Justice’s Office of Information Policy. “Under his leadership, we continue to apply our guidance and our training.”

Judiciary Committee Chair Dick Durbin (D-Ill.) said one challenge with implementing FOIA is the volume of emails and other electronic records that have to be searched and processed — sometimes so many records that having a human apply each necessary redaction is all but impossible. Durbin pressed Talebian on whether officials are considering using artificial intelligence to make such requests more manageable.

“We’re seeing records in volumes in different forms that could not have been envisioned when FOIA was enacted,” Talebian said. “Certainly, we’re definitely looking at advanced technology, including artificial intelligence to help us with the search and maybe even the processing of records.”

“Is our federal government flirting with the idea or serious?” Durbin asked.

“I would say: serious. We want the best tools,” Talebian added.

Sen. Sheldon Whitehouse (D-R.I.) used the session to complain about the Justice Department’s ongoing resistance in court to a FOIA request for an Office of Legal Counsel opinion detailing DOJ’s legal rationale why sitting presidents cannot be criminally prosecuted. U.S. District Court Judge Amy Berman Jackson ordered the release of the opinion, prepared in connection with the release of Special Counsel Robert Mueller’s report. She rejected the department’s arguments that the memo was part of the deliberative process and found that it was an after-the-fact justification for the decision not to prosecute then-President Donald Trump.

The Justice Department appealed that ruling to the D.C. Circuit Court of Appeals, where the case remains pending.

“There was no decision to be made,” Whitehouse said, noting that he and other senators have filed an amicus brief urging the appeals court to force disclosure of the opinion. The Rhode Island Democrat said DOJ’s interpretation would allow the exemption for deliberative process “to just run wild through the agencies.”

Talebian acknowledged he was involved in decision-making in the case but declined to explain further, citing a need to protect the same type of deliberative process that Whitehouse criticized.

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