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Friday, June 14, 2024 | Back issues
Courthouse News Service Courthouse News Service

From DOJ to EPA, Secrecy Soars Under Obama

(CN) - Government secrecy in several federal agencies, including the Department of Justice, has only increased under the Obama administration, according to a new report from a nonprofit watchdog group.

Marshaling various data to show that citizens hoping to take advantage of the Freedom of Information Act were stifled even more often in 2010 than in 2008, Citizens for Responsibility and Ethics in Washington (CREW) slams the administration across the board.

The 73-page report claims that its "results paint a very mixed picture on the FOIA front, with agencies generally processing more requests more quickly, but also increasing their reliance on the FOIA's nine exemptions to withhold more information from the public."

Specifically, the 15 agencies studied collectively relied on exemptions 33 percent more frequently in 2010 than in 2008.

The report covers the activities of agencies ranging from the Department of Housing and Urban Development to the Environmental Protection Agency, but the Department of Justice receives special scrutiny.

Among its many functions, the DOJ "developed its FOIA dashboard, known as FOIA.gov, as its 'flagship initiative' under the Open Government Directive, with a stated goal of presenting 'government data about agency FOIA performances... in an easy-to-understand, interactive format' to 'enable the public to hold agencies accountable for their performance,'" according to the report.

Following up on a previous report, however, CREW said, "The dashboard has not lived up to its promise and instead, as outlined above, has been plagued with problems that undermine confidence in the reliability of its data."

Technical glitches and omissions of agency FOIA liaisons abound, to the point that a full public audit is crucial, according to the watchdog group.

The DOJ also performed especially poorly in responding to FOIA requests. While certain agencies, including the Department of Homeland Security, have shown improvements, the report says that "the performance of five agencies in 2010 - DOI, NARA (National Archives and Records Association), State, DOJ, and EPA - did not seem to measure up to their performance in the final year of the Bush administration."

Though it has fewer FOIA appeals on its backlog than in 2008, "DOJ had 5,160 backlogged FOIA requests as of the end of 2010 and 4,364 as of the end of 2008. This is a difference of 796, an 18% increase," the report said.

The DOJ has also used most of the 14 exemptions and subexemptions to FOIA requests more often than it did in the last year of the Bush presidency.

For example, CREW reported a 121 percent increase of exemptions entered under section 7(E) of FOIA, which "authorizes agencies to withhold records 'compiled for law enforcement purposes' where their disclosure would disclose law enforcement techniques, procedures and guidelines and 'could reasonably be expected to risk circumvention of the law.'"

Similarly, there was a 61 percent increase in the application of exemption 7(A) of FOIA, which authorizes agencies to withhold records "compiled for law enforcement purposes" where their production "could reasonably be expected to interfere with enforcement proceedings," according to the report.

Various exemptions intended to protect personnel and informants increased as well. These include exemptions for records whose disclosure could endanger "any individual," records that may indicate the identity of a confidential source, or those that constitute an invasion of personal privacy. These types of exemptions increased by 87 percent, 23 percent and 88 percent, respectively.

Exemptions relating to information related to internal personnel practices and trade secrets, as well statutorily exempted material, were also used far more than in 2008.

Few exemptions saw a decline or no change, including one related to inter- or intra-agency documents that would only be available in litigation. Another intends to prevent the DOJ from breaching anyone's right to a fair trial.

In addition to exemption use, CREW also discovered numerous flaws in data quality and consistency, "making it impossible to assess key areas of progress and casting doubt on its overall reliability."

"As a result, what started as a statistical report on agencies' handling of FOIA requests ended as an expose of the problems with the data and tools the government has developed to measure its progress in implementing the FOIA," the report states.

"With a year left in his first term, President Obama still has room to improve his administration's track record and improve the quality of agency FOIA data," according to CREW. "The administration specifically should examine its reliance on FOIA exemptions and consider what additional specific steps could be taken to change the dominant agency culture from one of secrecy to one of transparency."

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