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Obama Administration Improperly Withholds Records & Censors, Keeps Secret More Files Than Ever

United States government agencies released their statistics on how they handled Freedom of Information Act requests in 2014. The numbers show President Barack Obama’s administration censored or kept secret a record number of government files, according to the Associated Press.

The administration received 714,231 requests, which is slightly higher than 2013. In thirty-nine percent of those cases (250,581 requests), the government censored or denied requesters access. This is an increase from 244,675 requests last year.

Exemptions to prevent records from disclosure to protect “national security,” “personal privacy” or “business secrets” were invoked over a half million times — from 546,574 in 2013 to 554,969 in 2014.

When challenged, government agencies admitted they had improperly withheld or censored records one out of three times. It was the “highest reversal rate” in five years.

The government agencies also collectively spent $28 million in lawyers’ fees while fighting FOIA requests.

On March 16, Acting Associate Attorney General Stuart F. Delery celebrated FOIA professionals, who handle requests during a Sunshine Week ceremony:

Every day, many of the professionals charged with implementing FOIA face the challenge of determining what falls within the limited set of potential disclosures that cannot responsibly be made.  That determination carries significant consequences.  On one hand, a disclosure could jeopardize a criminal investigation or put a confidential source in danger.  On the other hand, giving in to the understandable instinct to err on the side of protecting information could fundamentally undermine our ability to allow the public to see and understand what their government is doing.

The only way to strike that balance – to ensure the fullest responsible disclosure – is through the diligent and careful examination of each and every request for information.  Our FOIA professionals play a critical role in making that examination happen.

But, as the statistics show, there is no balance. The FOIA professionals are not enabling “responsible disclosure.” They are not following a presumption of openness but rather are diligently and carefully ensuring numerous records do not see the light of day when citizens request them.

These decisions include examples of protecting the vainglorious interests of those in power. For example:

In government emails that AP obtained in reporting about who pays for Michelle Obama’s expensive dresses, the National Archives and Records Administration blacked out one sentence repeatedly, citing a part of the law intended to shield personal information such as Social Security numbers or home addresses.

The blacked-out sentence? The government slipped and let it through on one page of the redacted documents: “We live in constant fear of upsetting the WH (White House).”

During a press briefing on March 17, White House Press Secretary Joshua Earnest addressed the Obama administration’s compliance with the Freedom of Information Act, as it confronted a tone-deaf decision to announce the regulations for public records requests no longer apply to the White House’s Office of Administration.

“It is the Office of Administration, for example, that is responsible for releasing the WAVES records on a quarterly basis. These are the records that for the first time give the American public insight into who’s actually visiting the White House,” Earnest declared. “You will recall that at least one previous administration went to the Supreme Court to prevent the release of those records, but yet it’s this administration through the Office of Administration that voluntarily releases those records.”

However, this is not an Obama administration transparency “achievement.” The administration did not voluntarily decide to release visitor logs. They were sued by Citizens for Responsibility and Ethics in Washington (CREW) and Judicial Watch.

On January 9, 2009—prior to Obama’s inauguration, the DC District Court ruled the visitor logs must be disclosed. CREW was seeking records of “nine conservative religious leaders as well as records of visits by Stephen Payne, who was caught on videotape attempting to sell access to top White House officials in return for contributions to [President George W. Bush’s] presidential library.” The Bush administration had previously lost the lawsuit after US Chief District Court Judge Royce C. Lamberth found hiding the identities of people “who visit the White House from the public undermines the FOIA’s goal of fostering openness and accountability in government.”

The Obama administration settled with CREW in September 2009 and decided to release visitor logs and voluntarily begin to post visitor logs online.

Meanwhile, Judicial Watch filed a lawsuit for the release of visitor logs between January and September 2009. A judge ruled on August 17, 2011, the records are subject to FOIA and should be disclosed unless they can be withheld under one of the law’s exemptions. Then, on October 14, 2011, the Obama administration appealed the ruling. It chose to maintain the position of President George W. Bush’s administration: that the visitor logs were presidential records not subject to FOIA.

Major media outlets filed briefs in support of Judicial Watch in May 2012. They expressed concern that, “Reversal of the decision below may encourage federal agencies to seek to place millions of documents outside of FOIA’s ambit based on no more than their say-so, even in the face of express statutes and judicial orders directly to the contrary. Permitting such an end-run around FOIA would significantly reduce the quantity and quality of information available to the media and, consequently, to the public at large, severely undermining the goal of an informed public that sits at the core of our democracy.” 

Jump to August 30, 2013. The Obama administration won a victory. Even though the Secret Service handles the process of screening and admitting visitors, the DC Circuit Court of Appeals ruled the visitor logs were not covered by the Freedom of Information Act.

The “most transparent administration in history” actively sought to undermine the spirit of the Freedom of Information Act by preventing a set of records from being available to the public unless the White House decides to disclose them. Any records it wants to keep concealed can be kept secret because of the precedents government attorneys were able to win.

Additionally, the administration claims it has “complied” with more than ninety percent of Freedom of Information Act requests for six straight years. The AP concluded this is still low, even when using President Obama’s own math. (Note: It’s unclear if this just means for ninety percent of requests agencies officials acknowledged they received requests from people and would begin processing but that seems the most logical explanation for the high statistic. And, if that is the case, obviously, in 90% of requests, people are not necessarily getting records.)

Every year, the AP has conducted this analysis. Every year, the Freedom of Information Act becomes more and more broken.

2011:

 

 

2012:

 

 

 

 

2013:

 

 

 

2014:

 

 

 

2015:

 

In 2010, AP ran an analysis with the headline, “PROMISES, PROMISES: Records not so open with Obama.” It examined flaws in the Freedom of Information Act process in 2009.

Obama’s press secretary boasts, “We actually do have a lot to brag about when it comes to our responsiveness to Freedom of Information Act requests.” However, this cockiness is simply infuriating when the system just keeps getting worse.

*For more, here’s a companion story written earlier today: “White House Reassures Everyone This Will Still Be The Most Transparent Administration Ever™

**Photo from White House and as government work is in the public domain.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."