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April 06, 2011

DHS May Not Be Alone In Politicizing FOIA Processing

By Anne Weismann

Federal Agencies, Department of Homeland Security, Securities and Exchange Commission (SEC), FOIA, Transparency, Eric Holder, President Barack Obama

SEC Building Through a Freedom of Information Act (FOIA) request, CREW has learned the U.S. Securities and Exchange Commission’s (SEC) FOIA processing guidance requires all FOIA requests from the media to be pre-cleared by the SEC’s Office of Public Affairs. In addition, the guidance authorizes pre-release clearance of any FOIA disclosure by the program office or division and the Offices of Public Affairs, General Counsel, Legislative Affairs, and the Chairman.

These practices increase the opportunity for political interference with the SEC’s processing of FOIA requests and likely result in delayed production of responsive documents beyond the 20-day period the FOIA mandates. In many ways, they mirror practices at the U.S. Department of Homeland Security (DHS) that were the subject of a House Oversight Committee hearing last week. Not only are the SEC’s FOIA policies potentially unlawful, but they appear to conflict with FOIA directives from President Barack Obama and Attorney General Eric Holder requiring a presumption in favor of disclosure for all agency decisions involving the FOIA.

CREW has asked the SEC’s inspector general to investigate this guidance and determine whether there has been improper political interference and whether political reviews at the SEC have resulted in unreasonable delays in responding to requests. DHS’s inspector general conducted a similar investigation and concluded DHS’s FOIA processes created inefficiencies and led to delays beyond what the FOIA authorizes.