FOIA’s Bipartisan Critics

You’d be hard-pressed to find an issue on which journalists and activists of all stripes are more united than in their frustration with the federal government’s treatment of FOIA requests.

It shows in the criticism even otherwise favorable sources have heaped on every president in recent memory.

A Columbia Journalism Review Trump administration retrospective noted that FOIA rejections and redactions increased under Trump, while delays grew at most federal agencies and the number of FOIA lawsuits skyrocketed.

“Just about by any measure, things have gone from bad to worse,” says Adam Marshall, who works on FOIA lawsuits for the Reporters Committee for Freedom of the Press.

Marshall said “things have gone from bad to worse” in part because as the article detailed: “The Obama administration … set records for FOIA non-compliance and was caught at one point … contradicting its public posture [in favor of transparency] by lobbying against FOIA reform behind closed doors.”

Despite the traditional media’s largely sympathetic treatment of the Obama administration, establishment journalist organizations criticized the White House directly over its perceived lack of transparency.

The George W. Bush administration elicited similar criticisms, not only from the likes of the American Civil Liberties Union, but also from conservative Judicial Watch, which characterized the administration’s FOIA posture as “arrogance throughout — that the government is not to be questioned.”

This past January, an open government coalition chastised the Biden administration for not issuing FOIA guidance to agencies during its first year, ignoring an April 2020 request that it do so, and past precedent.

As the coalition wrote in a letter to the DOJ – which typically issues such guidance and monitors FOIA compliance: “Noncompliance is at a decade-long high even while requesters are waiting longer than ever to initiate litigation. We once again appeal to you to act.”

A bipartisan group of lawmakers followed suit, urging Attorney General Merrick Garland to act.

In March, Garland did so, moving to “direct the heads of all executive branch departments and agencies to apply a presumption of openness in administering the FOIA and make clear that the Justice Department will not defend nondisclosure decisions that fail to do so.”

Reed Rubinstein, Senior Counselor for America First Legal, who has helped RealClearInvestigations draft several FOIA requests, does not believe the Biden administration is practicing what it preaches, telling RCI it has taken FOIA obstruction “to a different level,” and arguing that its email-related requests “suggest that the White House has imposed a new requirement to slow down or frustrate requesters.”

Those RCI interviewed suggest that administration guidance like Garland’s is typically perfunctory.

Michael Bekesha, a senior attorney at Judicial Watch, says that while some administrations distinguish themselves by saying “they’re going to be more proactive towards disclosure, like the Obama administration … That doesn’t mean they are. It just means they talk the talk. But the agencies very rarely walk the walk.”

Seth Moulton, senior policy analyst at the Project on Government Oversight, notes that “through almost every administration, what changes is in the margins … You get an administration that comes in that says, ‘We want you to … put more resources to it, release more information here or there,’ [generate] a little bit of improvement maybe …”

William Cohan, author of several New York Times bestselling books about Wall Street – most of which he says began with a FOIA request – says that irrespective of “the administration, or the politics of the administration, or even the statements of the administration leaders about wanting to be open and transparent and trying to improve the process … every single FOIA request is met with delay and obfuscation.”

The numbers seem to tell this story.

The government’s backlog of FOIA requests swelled by a staggering 97% from 2012 to 2020 – that is, across vastly different administrations.

The backlog has grown against a backdrop of ever-increasing requests, rising to 838,688 in 2021 alone – continuing a trend only interrupted by the 2020 pandemic year whereby requests increased 32% from 2012 to 2019.

During the 2012-2019 period, full denials of FOIA requests grew by 10%, and partial denials by 76%.

In 2021 the GAO reported that several agencies were out of compliance with proactive disclosure requirements. 25 reported zero such disclosures in 2018 and 2019.

Cohan is adamant: “I think FOIA is a joke … to pretend that we have anything like a Freedom of Information Act that actually works and does anything for a working journalist is also a joke.”

This article was originally published by RealClearInvestigations and made available via RealClearWire.

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