April 14, 2011
A few weeks ago we were treated to the political theater of a House Oversight Committee hearing with the loaded title “Why Isn’t the Department of Homeland Security Meeting the President’s Standard on FOIA?” Led by Chairman Darrell Issa, the Committee supposedly wanted to get to the bottom of allegations that have been swirling around for months about the interference with DHS’s processing of FOIA requests by political appointees. While that certainly is a valid subject for congressional oversight, the Oversight hearing veered quickly into irrelevancies and partisan posturing and, in the end, we were no closer to getting answers than we were before the hearing started.
Let me be clear: CREW has publicly criticized this administration for its lackluster implementation of the president’s open government agenda. While the right policies are in place, implementation lags far behind. We in the FOIA trenches simply are not seeing the kinds of changes the White House and Attorney General promised, with the Department of Justice emerging as the biggest culprit. To our mind, the problem is not so much political interference but rather the culture of secrecy that still prevails and the lack of leadership on this issue where it really counts – at the FOIA working level of each agency.
This is not to say the allegations concerning DHS are not troubling or that Congress should not be looking at impediments to transparency. But we cannot accept using these valid issues to advance a political agenda; the politicization of the FOIA at DHS is no excuse for Chairman Issa’s politicization of the Oversight Committee.
We need a serious examination of these issues and an agency response that is more than the reflexively protective testimony offered by DHS General Counsel Ivan Fong. Investigation of these issues by agency inspectors general will go at least part way toward answering questions of improper political interference. DHS’s Office of the Inspector General already has investigated these allegations and concluded the extra levels of review resulted in unnecessary delay in responding to FOIA requesters. Recently CREW obtained a report issued by the SEC’s inspector general on the role of political appointee’s in that agency’s response to FOIA requests. The SEC report concludes that although the agency’s FOIA policy permits pre-disclosure review by a number of agency offices, that review has neither resulted in any additional withholdings nor changed the processing decisions of the agency’s FOIA office.
Even if FOIA policies like those in effect at the SEC have not been abused, they provide a vehicle for improper political interference. Periodic inspector general examinations offer only a snapshot of what may or may not be happening at an agency at a particular point in time. In the case of DHS, CREW has learned that beyond what the inspector general examined, there is compelling evidence political appointees have improperly interfered with the FOIA professionals in responding to requests. But even with the House Oversight Committee hearing, we are no closer to getting to the bottom of this serious problem.
Those of us who care about transparency and recognize it as a non-political issue deserve better than a partisan swipe aimed at scoring points rather than redressing serious and systemic problems. If congressional oversight does not hold the answer perhaps it is time to look for legislative changes that are immune from political meddling.