More FOIA requests, more processing…and a longer backlog

The Justice Department’s FOIA report for 2011 paints a maddening picture: as the agency works to process more requests than ever before, the line just keeps on growing…

Federal agencies processed more than 631,000 requests for government records under the Freedom of Information Act in fiscal 2011, 5 percent more than the year before. But the number of backlogged requests government-wide nonetheless shot up from less than 70,000 to more than 83,000.

The growing backlog is due in part to a significant increase in the number of FOIA requests sent to agencies in 2011. Submissions went from 597,000 in 2010 to 644,000 in 2011, an 8 percent increase. While the government as a whole dedicated 9 percent more full-time staff to FOIA processing and spent almost $20 million more on FOIA-related activities than the year before, backlogged requests nonetheless grew by 20 percent.

The figures come from the Justice Department’s 2011 summary of annual FOIA reports, a compilation of data contained in each agency’s yearly performance report under the 1966 open government law.

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Three Federal FOIA Wins in One Week?

A huge week for federal FOIA, and the federal judiciary getting it right….

The U.S. Justice Department has lost three significant court rulings over records sought by the public under the Freedom of Information Act, including a rare order to release a classified document.

English: Internal CIA memo, released under the...

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The rulings have been issued recently by judges in federal district court in Washington. Two of the judges have ruled that protecting the privacy of congressmen is not enough reason to withhold records about corruption investigations of the lawmakers.

The third ruling, from U.S. District Judge Richard Roberts, said the U.S. Trade Representative must turn over a position paper prepared during negotiations for a Free Trade Agreement of the Americas, conducted in the 1990s and 2000s, which never resulted in a deal. The Justice Department had argued that disclosure of the document would damage foreign relations since it agreed with other nations that documents produced during the negotiations would not be released to the public.

On Wednesday, Roberts sided with the Center for International Environmental Law in finding there were no plausible or logical explanations to justify the secrecy. He cited the member nations’ agreement that all documents produced during negotiations would be publicly available at the end of next year unless a country objects to the release of one of its own documents. He said that was evidence that the confidentiality was meant to give the participating nations a way to release their own materials, rather than keep other countries from releasing theirs.

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We Need Secrecy for Drones, So We Need Secrecy For…

The Justice Department has a new legal argument for why the government should be allowed to conceal the postmortem photographs of Osama bin Laden: It’s doing the same thing with the CIA’s classified drone program.

On Wednesday, the department filed court papers [PDF] asking a federal judge to rule against the government watchdog group Judicial Watch, which is suing for the release of “all photographs and/or video recordings” taken of bin Laden during the May 1, 2011 raid in Abbottabad. The filing rehashes many of the government’s stated reasons for concealing the photographs (inciting violence in the Muslim world, revealing classified “operational methods,” etc) but also leans on the CIA’s refusal to acknowledge its widely-publicized drone program.

The argument confronts a claim by Judicial Watch that releasing the bin Laden photos would not pose a national security risk because everyone already knows the U.S. killed bin Laden. In response, the Justice Department says the CIA’s drone program, like the U.S. raid in Abbottabad, is also public knowledge but that doesn’t mean releasing information about it wouldn’t jeopardize national security.

“The fact that the public may already speak freely of the existence of drones, or speculate openly that such a program may be directed in part or in whole by the CIA, does not emasculate the CIA’s warnings of harm were it forced to acknowledge officially the existence or nonexistence of requested records,” reads the filing.

It’s the sort of argument that makes government transparency advocates squeamish. As The New York Times noted about the CIA’s failure to acknowledge the drone program in October, “The secrecy compulsion often merely makes the government look silly … But it can also hinder public debate of some of government’s most hotly contested actions.” Now, turns out, the Justice Department is using the government’s much-pilloried refusal to acknowledge the widely-known drone program to justify its withholding of the bin Laden photos, creating a kind of slippery slope of secrecy.

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Judicial Watch Sues Obama Administration Over Access to Mortgage Docs

Judicial Watch, the organization that investigates and fights government corruption, announced today that it filed a Freedom of Information Act (FOIA) lawsuit on January 3, 2012, against the Obama Department of Justice and U.S. Department of Housing and Urban Development to obtain documents pertaining to accusations of fraud against the nation’s five largest mortgage companies and the creation of “federal accounts” to settle probes into faulty mortgage practices.

The Obama administration has reportedly been engaged in settlement negotiations behind closed doors with mortgage companies that would result in at least $20 billion in payments from the nation’s major banks.

Pursuant to a Judicial Watch FOIA request filed with the DOJ and HUD on May 17, 2011, Judicial Watch seeks the following records:

--  A set of government audits used to support allegations that the
            nation's five largest mortgage companies of defrauding taxpayers in
            the handling of foreclosures on homes purchased with government-backed

        --  A term sheet which outlined the Obama administration's settlement
            offer to the mortgage companies accused of fraud. The terms described
            on this document allegedly included the creation of a federal account
            funded by the nation's largest mortgage firms to help distressed
            borrowers avoid foreclosure and settle state and federal probes into
            alleged faulty mortgages practices.
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Justice seeks to keep bin Laden pics secret…

The Wall Street Journal does a nice blog summary of a titanic struggle in FOIA circles:

Justice Department attorneys said the CIA has located 52 photographs and video recordings of bin Laden during the May raid that killed him, but the DOJ contends the images are classified and being withheld from the public to avoid inciting violence against Americans overseas and compromising secret systems and techniques used by the CIA and the military, according tothis AP report. (Here’s an earlier LB post on the hunt for the Osama photos.)

Tom Fitton, president of Judicial Watch, a conservative group that had sued to force disclosure of the images, issued a statement accusing the Obama Administration of making a “political decision” to keep the bin Laden imagery secret, AP reports. “We shouldn’t throw out our transparency laws because complying with them might offend terrorists,” he said.

President Obama, Tear Down That Classification Scheme!

President George W. Bush and President-elect B...

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This just makes my head explode…from a timely and important op-ed in the New York Times:

A former top official in charge of ensuring that real secrets are kept secret has delivered a stunning repudiation of the Obama administration’s decision to use the Espionage Act against a whistle-blower attempting to expose government waste and abuse.

J. William Leonard, who directed the Information Security Oversight Office during the George W. Bush administration, filed a formal complaint about the prosecution with the Justice Department and the National Security Agency, and urged punishment of officials who needlessly classify documents that contain no actual secrets.

In the case in question, Thomas Drake, an N.S.A. employee, faced 35 years in prison for espionage after he leaked information to a reporter about a potential billion-dollar computer boondoggle. The case collapsed last month with Mr. Drake walking away after a token misdemeanor plea to providing information to an unauthorized person. The government was deservedly berated by Judge Richard Bennett of Federal District Court in Maryland for an “unconscionable” pursuit of the accused across “four years of hell.”

Prosecutors dropped the felony charges at the 11th hour after Judge Bennett ordered them to show allegedly classified material to the jury. But Mr. Leonard said he was willing to testify for Mr. Drake that there were no secrets at issue and that he had never seen “a more deliberate and willful example of government officials improperly classifying a document.”

The Obama administration has misguidedly used the Espionage Act in five such cases of news media disclosures; previously there were no more than four in all of White House history. This comes as officials classified nearly 77 million documents last year — a one-year jump of 40 percent. The government claim that this was because of improved reporting is not reassuring.

I voted for Obama last time. I will again. This is no secret to anyone who knows me, nor should it be much of a shock, given the alternatives. But it’s high time the access community got past the whole partisanship thing and started pummeling, really pummeling this President, who grows more secretive by the day.

Of course, maybe that is part of the problem: as the lone centrist in presidential politics these days, Obama knows he can repeatedly ignore the will of the openness community in quite a callow way, and the repercussions are nil. He pays no price from his base — much the way W paid no price for his secrecy, couching it in terms of executive power, which was quite the fashion of the day.

Still, we in the access community have a moral obligation to blast the administration for petty, vindictive, small-minded governing, not one iota less a duty than we had during the previous administration. I’m picking up a pen right now, and going to work…




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