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In Obama's ‘open government,' transparency elusive

Oct. 8, 2011 - 06:00AM   |  
By SEAN REILLY   |   Comments
President Barack Obama speaks during a news conference Oct. 6.
President Barack Obama speaks during a news conference Oct. 6. (Alex Wong / Getty Images)

Some federal agencies post the office phone numbers of public affairs staff on their websites.

Not the Department of Homeland Security, which believes their release poses "a clearly unwarranted invasion" of employee privacy.

That was the department's response when it denied a Federal Times Freedom of Information Act request for the office phone numbers of its official spokesman. Personal privacy exemptions to FOIA are more commonly used to block disclosure of personnel or medical files.

DHS' response typifies what many see as the Obama administration's unfulfilled promise to shed more light on government operations through FOIA, the key federal open records law.

The day after President Obama took office in January 2009, he directed agencies to "adopt a presumption in favor of disclosure" when responding to Freedom of Information Act requests.

"I just can't say that I've seen the kind of changes I expected," Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, a watchdog group, said last week. "It's been a big disappointment."

At Public Employees for Environmental Responsibility, Executive Director Jeff Ruch said his organization files a new lawsuit roughly every three weeks to force agencies to release records. In general, Ruch said, the administration has been leading by "aspiration instead of perspiration.

"They'll put out a lofty memo, but take no steps to make sure that people are following the memo," Ruch said.

The White House did not reply to an interview request with Steven Croley, a senior counsel to the president and the administration's point man on FOIA policy.

In a report last month, the Obama administration claimed that, overall, FOIA backlogs were cut 10 percent in fiscal 2010 and agencies' use of FOIA exemptions to withhold information fell by more than 10 percent as well.

In a March report that surveyed the FOIA performance of 25 agencies, OMB Watch found agencies granted all information requests without any redactions 48 percent of the time. That ended a seven-year stretch in which agencies approved increasingly fewer requests.

But that 48 percent figure is far below the average for the final years of the Clinton administration, when requesters received everything they sought more than 70 percent of the time.

Melanie Ann Pustay, director of the Justice Department's Office of Information Policy, which oversees federal FOIA activities, said in an interview that some agencies are taking steps to improve disclosure, such as pro-actively posting records on their websites without requiring a FOIA request. In October 2010, the administration launched FOIA. gov, a website that posts how long agencies take to process FOIA requests and how frequently they release information.

"I feel like this is the most transparent we've ever been," Pustay said.

Enacted in 1966 and amended several times since, the Freedom of Information Act requires agencies to release records unless they are deemed to be covered by one of nine exemptions, such as personal privacy, protection of classified or national security details, trade secrets or law enforcement cases still under investigation.

The law requires FOIA requests to be handled within 20 days, but there are allowances for agencies to extend that deadline. But in practice, processing FOIA requests can sometimes take years; deciding what is releasable is often a judgment call.

Under guidelines of the George W. Bush administration, the Justice Department told agencies to withhold records whenever they could find a legal basis for doing so. As a result, FOIA disclosures steadily declined during Bush's tenure from 2001 to 2009, according to data compiled by OMB Watch, a liberal-leaning watchdog group.

Obama's 2009 directive sought to reverse that.

Two months after Obama signed it, Attorney General Eric Holder changed the Bush policy with new guidelines instructing executive branch agencies not to withhold information just because they could.

But the message has trickled down unevenly, open government advocates said.

"Some agencies have really embraced the new direction and the new policies," said Sean Moulton, director of federal information policy at OMB Watch, singling out the Environmental Protection Agency as an example. Others, such as the intelligence agencies, seem to be continuing with "business as usual," Moulton said.

Only last month, for example, the State Department turned down OMB Watch's FOIA request for the text of a presidential directive on global development policy issued last year. At the time, the White House had trumpeted the directive, even putting out a fact sheet on its contents. But in its response, the State Department said the directive itself was exempt from release under the "presidential communication privilege."

To Jeff Stachewicz, a Washington lawyer whose firm files hundreds of FOIA requests each month, the inconsistencies are evident in how agencies have handled his attempts to get information contained in scorecards compiled on the performance of individual contractors. The scorecards are officially known as contractor performance assessment reports. While NASA, the Interior Department and the Agriculture Department have agreed to provide the information, Stachewicz said, most agencies have been "stonewalling."

In response, Pustay said her office is working constantly with the 97 agencies subject to the Freedom of Information Act through training, guidance and other activities.

"We're doing all our work at the grass-roots level," she said, adding that a future priority is making more use of technology.

Meanwhile, some agencies continue to make questionable calls when deciding on FOIA requests.

In late 2009, for example, Federal Times asked the U.S. Postal Service for five years worth of data on its use of "standby time," when employees are paid to do nothing. Almost two years later, the Postal Service responded last month by withholding the information on the grounds it was covered by the "trade secrets" exemption. But along with that response, the Postal Service enclosed a copy of a recent inspector general's report that contains some of the same information Federal Times was seeking.

In the case of DHS, a Federal Times reporter sought the phone numbers of individual public affairs staffers after having difficulty reaching them through a central email address for media inquiries. The agency eventually released a 58-page directory of public affairs staff, but redacted every phone number under the privacy exemption.

"That's crazy," said Rick Blum, coordinator of the Sunshine in Government Initiative, a coalition that promotes open government.

Last week, the FOIA manager who signed the response letter referred questions on the rationale for that decision back to the public affairs office. There, spokesman Matthew Chandler had no comment, but provided a copy of a memo from Mary Ellen Callahan, the department's chief FOIA officer, that sanctioned the withholding of contact information for DHS employees under the privacy exemption.

"In many cases, information that identifies individual DHS employees does not directly shed light on the operations or activities of the government, and FOIA officers should withhold it," Callahan wrote last year. She added, however, that senior-level officials "have a lesser expectation of privacy than lower-level administrative employees."

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