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Don’t Expect the Feds to Enforce FOIA

By Ty Clevenger

A few careers ago, when I was a newspaper reporter, most state and local agencies replied promptly to my requests for information under the Texas Open Records Act. But Christine Tatum’s column about the Freedom of Information Act, which ran in my local newspaper (the Bryan-College Station Eagle), reminded me how often federal agencies flout public information requests and get away with it.

Ty Clevenger is an attorney in private practice in Bryan, Texas. He previously was a reporter for the Longview News-Journal and The Washington Times, and a stringer for the Dallas Morning News and Houston Chronicle.

According to its own records, the U.S. Department of Justice, the agency foremost responsible for upholding federal law, routinely violates FOIA’s statutory deadlines, which give an agency up to 30 days to respond to a request and up to 30 days to answer an appeal. Meanwhile, the Office of Special Counsel, an independent agency specifically charged with enforcing FOIA, does not enforce FOIA at all. In fact, OSC itself often fails to comply with FOIA’s statutory deadlines when it receives requests for information.

My Hapless FOIA Request
I learned all this after filing a FOIA request with the FBI, a component of the Justice Department. Nearly ten years ago, while I was in law school, I stumbled across some rather interesting speculation about the DNA test results of President Bill Clinton that were published in the Starr Report.

Not long after the Clinton-Lewinsky fiasco, Star Magazine obtained and compared DNA test results of a then-teenager alleged to be the illegitimate son of the President with the test results found in the Starr Report. (Yes, I realize I won’t win points by mentioning Star Magazine on the SPJ website). The story went nowhere, and it was widely assumed that the tests proved President Clinton could not have been the teen’s father.

Perhaps unsurprisingly, an online writer speculated that the FBI had indeed found a match with the Lewinsky evidence, but altered the results presented to Starr in order to protect the President’s privacy. Not likely, I thought, but on the other hand, irregularities in the FBI laboratory had made headlines in 1995. So I filed a FOIA request with the FBI in 2001 for laboratory information pertaining to the DNA tests on President Clinton. Fourteen months later, the FBI sent me exactly the same lab report it sent to Kenneth Starr.

I forgot about the matter until late 2004, when I mentioned the FOIA request to some friends at dinner. They suggested I renew my request, so I did so with more specificity on January 16, 2005, requesting laboratory notes and raw data. The FBI again disregarded the FOIA deadlines, responding more than a year later on May 15, 2006.

In that response, the FBI withheld more than half the information I requested, i.e. all the pertinent stuff, so I filed an administrative appeal with the Department of Justice on July 20, 2006. The Department had 20 days to respond — 30 with an extension — but some eight months later it still has not responded.

Assuming I ever see the records, I don’t expect to find anything earth-shattering. But I have been surprised by the poor response times of the agencies charged with upholding the law.

DOJ’s Compliance Record Among the Worst
In the interest of full disclosure, I formerly worked as an attorney at DOJ, and I have a bone to pick with the Department (See http://www.abovethelaw.com/ty_clevenger). That said, my troubles with DOJ and FOIA are not unique. As mentioned previously, DOJ’s own annual reports show that it routinely fails to comply with FOIA deadlines.

Most Cabinet-level departments, including DOJ, report median response times of various component agencies but do not provide a department-wide tally. I took a pass on crunching the numbers for all the departments, but I’ve listed in Table 1 the 2006 data for the three departments that report department-wide results. In Table 2, I’ve listed some of the worst offenders within DOJ, i.e. those components that routinely exceed the maximum 20 days allowed by statute (30 with a ten-day extension).



OSC, The Enforcement Agency That Does Not Enforce
Adding to that problem, the agency charged with FOIA enforcement has abandoned its post. Under 5 U.S.C. § 1216(a)(3), the U.S. Office of Special Counsel is required to investigate “arbitrary or capricious withholding of information prohibited under [the Freedom of Information Act].”

You would never know that from reading OSC’s website. The website boldly proclaims OSC’s duties in enforcing the Hatch Act, protecting whistleblowers, permitting disclosures of government wrongdoing, and protecting reemployment rights for veterans and military personnel, but it says absolutely nothing about its duties to enforce the Freedom of Information Act.

Similarly, a publication titled “The Role of the U.S. Office of Special Counsel” (http://www.osc.gov/documents/pubs/oscrole.pdf) never mentions its duty to enforce FOIA. In fact, I could not find a single OSC publication that mentioned FOIA, except those that discussed OSC’s own internal compliance — or noncompliance — with FOIA. (In the further interest of full disclosure, I should note that I reported DOJ’s failure to respond to my FOIA request to OSC, and OSC did not prosecute. I also filed an unrelated whistleblower complaint that OSC declined to investigate.)

OSC’s annual reports to Congress show that OSC itself has routinely failed to make timely responses to requests for information since 2000, the first year that OSC began posting its reports on the Internet. Perhaps that explains its reluctance to enforce FOIA on other agencies.

And since 2003, there is no record of a single FOIA prosecution. In 2002, OSC reported that 23 of the 3,392 complaints it received concerned FOIA violations (but it did not indicate whether any cases were prosecuted). In 2003, the year current-Special Counsel Scott J. Bloch was appointed, OSC stopped reporting that data.

A Solution
Government agencies might well argue that current FOIA deadlines are unworkable and should be extended. If they are unworkable, then government agencies need to make that argument rather than ignore the law.

In too many cases, however, federal agencies get away with withholding information or delaying its release. And why not withhold or delay? OSC has shown no interest in prosecuting violators, so the only way to force the government’s hand is to file suit. If the requester wins, then his or her attorney’s fees are paid by the government, but the officials who withheld the information face no repercussions. And how many requesters have the money to bring suit in the first place?

That’s why journalists and other freedom of information supporters need to join forces and take matters into their own hands. A class-action lawsuit against the Department of Justice could go a long way toward convincing bureaucrats that compliance with FOIA is not optional. OSC may not be willing to put teeth in FOIA, but a federal judge just might.

Meanwhile, I’ll just keep wondering why DOJ and the FBI don’t want to release those DNA test results.