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Saturday, October 22, 2016

President Obama ran for office seven years ago promising the most open and transparent administration in history. But a clever test has revealed the chasm between that promise and reality.

Just seven of 21 federal agencies responded properly to a simple Freedom of Information Act request, while 10 of the remaining 14 agencies flouted the law. The Central Intelligence Agency responded by denying the request, but it turns out the CIA was playing games, as we shall see.

This lawlessness matters because government officials, regardless of party, like to hide information. They do this for myriad reasons, whether it’s to genuflect to defense contractors with lucrative contracts, conceal whether airport body scanners are effective, or to cover up misleading official statements.

Our government derives its powers from the consent of the people. It must be held accountable if our liberties are to endure.

That’s where a clever project by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University comes in.

To comply with the Freedom of Information Act, federal agencies must create a unique number to track each request, noting when the request arrived and when the case was closed.

TRAC asked 21 agencies for this and similar tracking data covering every FOIA request filed from October 2012 to December 2014.

Why such arcane data, which does not identify the requester or the information sought? Management professor Sue Long, a TRAC co-director, said that data is needed to analyze how quickly agencies comply with the Act.

The agencies must maintain such data in order to compile mandatory annual reports that disclose the volume of FOIA requests and the backlog of unfilled requests. That backlog rose significantly last year, in part because congressional Republicans slashed budgets for data gathering, statistical analysis, and fulfilling FOIA requests. This all makes government smaller, but also makes it less useful and accountable.

While seven of the 21 agencies complied, nine ignored the FOIA request or stopped responding to follow-up requests. Four agencies indicated they are trying to comply, but missed statutory deadlines. And one, the CIA, denied the request altogether, citing what are clearly specious grounds.

The CIA game playing is instructive.

The agency claimed it would need to create an entirely new kind of record in order to comply with the request, and on those grounds denied said request. But if the requested information was not available, it indicates that the CIA fails to comply with the recordkeeping requirements of the FOIA.

Kali J. Caldwell, a CIA spokesperson, told me that “while the CIA does maintain certain statistical data as required by law, the requester sought a specific record in which that data is compiled. The CIA does not have such a document and, therefore, could not comply with the initial request. Nevertheless, CIA did offer to provide documents that contained some of the same information in a different format. That offer was declined.”

Hello, Inspector General. May I suggest a timely subject for your gumshoes lies in the statement above, a classic of bureaucratic obfuscation — just because.

A History of Obstruction

Gregory J. Manno, a Syracuse assistant professor of journalism who devised the test, offered this nugget of Orwellian intrigue: One of the agencies that flouted the law was the Office of Information Policy at the Justice Department, the very outfit that is “responsible for encouraging agency compliance with the Freedom of Information Act.”

Dealing with government agencies that try to avoid disclosing their records is a hot topic at the two annual conferences held by Investigative Reporters and Editors (IRE), a nonprofit that provides resources for investigative journalists, and has more than 5,400 members.

Mark Horvit, IRE executive director, says it’s the general consensus of journalists he has spoken to that the Obama administration has been less open than the George W. Bush administration. I warned about exactly this nine days after Obama took office, and took flak from those who said my piece was premature.

Obama gets bad press in good part because his administration tends to treat journalists with contempt, in contrast to the way the George W. Bush administration courted many reporters. Journalists, being human, tend to be more sympathetic to those who smile rather than growl, as Nancy Pelosi’s daughter showed in her documentary on the 2000 presidential campaign.

Dennis McDougal, formerly a Los Angeles Times reporter, sought records of a drug dealer who had extraordinary access to a Drug Enforcement Administration office. The Justice Department demanded McDougal pay research and photocopying fees, telling him the documents were only “to further your commercial interests.” This would seem to disregard the FOIA law, which authorizes fee waivers specifically for journalists and authors.

The official who turned McDougal down agreed to talk to me, but that conversation was ultimately blocked by Justice Department flacks. Justice has never responded officially to requests to explain its lawless behavior.

(Disclosures: I teach at the Syracuse University College of Law and Whitman School of Management, but have no involvement with TRAC. I am the immediate past president of IRE. McDougal and I were colleagues in the 1980s.)

Injury to the Public Interest

When President Lyndon Johnson approved the original Freedom of Information Act 49 years ago, his signing statement set the tone that has hobbled those seeking information ever since. The last 10 words of the following sentence told the bureaucracy to craft loopholes: “No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”

The FOIA has been modified many times since. Two decades ago agencies asserted that digital records were confidential. President Clinton signed a 1996 law that specified the FOIA covers electronic records.

Obama has never come through on his promise of “transparency and open government.” He did, however, include a lawyerly disclaimer to his Open Government Directive:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Let’s expand our rights to know what our government does. Let’s start by telling our federal lawmakers to strengthen and expand the FOIA. We could do that in many ways. For instance, Congress could insist that, in cases of non-commercial requests, missed time deadlines result in automatic payments to requesters. Making the penalties grow by the day until the request is fulfilled would be another powerful motivational tool. Specious denials could subject FOIA officers to individual liability, which they could escape only by showing they were doing as instructed by superiors, who would then themselves become liable. Other options abound.

This is the Digital Age. We should make our government embrace it and its power of transparency.

Photo: Marino González via Flickr

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  • Dominick Vila

    We have to go no further than the “starving the beast” strategy to understand the root cause for so many Federal government institutions falling behind at a time when technology is available and used widely by foreign government and the private sector. The same goes for our infrastructure, our education system, medical research, and so many other areas where we led the world just a few decades ago.

  • Alvin Harrison


    The article above is about a test that was done by a famous University to test the transparency of 21 different Government agencies. What was asked for was not secret or controversial documents. What was asked for basically was the number of requests for documents, how many were released and how many denied. Of the 21 agencies polled only 7 provided the information.

    So not only are documents considered secret….so is the number of requests to see ANY documents and how many approved/denied. This lack of transparency regarding “requests:” does not instill confidence that the agencies are divulging what should be public information. Does that surprise anyone? I didn’t think so.

    Honesty is hardly the best policy when trying to control a population. But maybe it is for our own good. Remember the famous line blurted out by the General on the stand payed by Jack Nicholson in the movie A Few Good Men: “The truth? You couldn’t handle the truth! He is probably right….Well sort of. We could handle it…We just wouldn’t like it.It is much easier to go on with our little lives, not being told who had to be killed, mistreated, invaded or otherwise screwed to keep Big Macs and other products we “need” coming.

    You see….those in power know what’s best for us. What must be done, to sustain life as we know it in the USA, requires some actions for which a conscience would prevent us from taking. Since many of us have that disturbing conscience, proof of said disturbing actions might cause us pause. That, my friends, might disrupt the cash flow into the coffers of the Corp/1%. To quote another movie, this time concerning a Russian serial killer when full transparency concerning the investigation was requested by the lead detective…”That they will never do! It strikes me as funny that we have the the same type of secrecy and denial of truth in our government as the hated Russian communist regime of the 60s, 70s, and 80s. We should be asking, and quite soon for the walls to be torn down.

    • hicusdicus

      This brings up water-boarding It got the job done without physically hurting anyone .Everyone denounced it for being uncivilized. I wonder how many people are alive today because of it? People who did not like it were mostly arm chair warriors who never suffered anything worse than a paper cut.

      • Alvin Harrison

        First off my friend…I doubt you have ever been water boarded, so you cannot relay whether it physically hurts or not. My assumption would be that torture, by definition, hurts. Second, we have NO idea if it saved even one life. You might petition the CIA or NSA, under the freedom of information act, for information on waterboarded detainees and see how many gave us information that saved lives…see what info you get back to suppot you claims…..LOL

        • hicusdicus

          I almost drowned once does that count? Let me rephrase my statement. It does not physically damage the body. I am for what ever it takes to keep me and my family safe. What about you?

          • Alvin Harrison

            HEY GUY…I am not trying to make fun of your comment, and I share your concern for the safety of our families. My concern is that all this secrecy could be perpetrated for benevolent or malevolent intent. I am not sure I trust our government’s protestations that they are doing things of the benefit of the people when they are controlled by big money and the Corp/1%…our government has “priors” unfortunately that makes me concerned as to their motives and agendas.

          • hicusdicus

            I have this really pessimistic out look. If I can not do anything about it I would just as soon not know. Anything the government discloses I would not believe. The government is made up of people and people lie more than my dogs. Either party will tell you and give you what ever is necessary to buy your vote. Then they will tax it all back from you. Torture is a human institution it all started when god told Adam he could not eat an apple and Eve said eat it and I will show what a party is. If that is not torture then what is? Have a good day and remember when it is over it brings you one day closer to the very last day.

          • ps0rjl

            You sound though like someone who has never spent a day in the military. The military does not torture prisoners because they do not want their own people when captured to be subjected to torture. The CIA though has much to the disgrace of what our country should stand for.

          • hicusdicus

            Why don’t you start a program to tell the Islamic’ s what America stands for? This should make you feel better right before they cut off your head.

          • etherbunny

            Torture is NOT the answer.

          • hicusdicus

            I bet it would work on you.

  • Eleanore Whitaker

    Well, well, well…so the FOIA isn’t working. Gee, tell us something we didn’t know. The FOIA was not going to supercede those drunk on power these days. They believe that once elected, they are no longer beholden to taxpayers or citizens. Of course, this now sets the stage for an uprising they will at first blush ignore. But, being the “ignerts” they are, their bossy, overbearing attitudes of proprietary covetousness and elitism will no doubt elevate them to even higher levels of power and autonomy. Until, that is, the most intelligent among us beat them at their own silly, childish games. Today’s elected pride themselves on a NEW form of government: Legislate via Loopholes. Poke enough loopholes into any legislation and the door opens wide for those who play that fine old corporate game of “Need to know.”

    • hicusdicus

      Does this apply to your liberal friends or is it a GOP thing? There is one truism , if you need to know it is probably none of your business. The one thing you seem good at is tap dancing around the truth. You started all this when you were 3 years old and when it all went down the toilet when someone super glued your legs together. Now you are just a ghost of yourself. You should write about it.

      • Eleanore Whitaker

        You only prove what an imbecile you are. I need to know where children in my charge are…It IS my business. And, pallie…if you open your mouth, make a statement you MADE IT MY BUSINESS…See the difference? I am fully aware that men like you lie lie lie and then start to believe your own lies and worse, then try to make it appear everyone else who knows you are liars are crazy..Doesn’t work with me…far too savvy for the proclivities of pathological sociopathic liars like you.

        There are things men like you hide because you are cowards who can’t face the consequences of your actions. Boozers, druggies, gamblers and womanizers ALL do play the same head games. Unfortunately, these are games that are all too old and men like you are seen for what you really are: cowards.

        • hicusdicus

          Wow! You sure got off to a rolling start this morning. There is a cure for your discomfort, its called ex-lax. You should try it your eyes might turn back to blue again.

          • Eleanore Whitaker

            A man like you can’t stand any woman to be more intelligent. So, you rail and rant and rage and bellow as if that scares the likes of me. Bigger men than you have tried. For me, it’s not the kill, it’s the thrill of the chase.

            As for the rest of your inanities, Jealousy is the tribute mediocrity pays to genius. Take the hint. You are so far out of your league, you are a Testosterone clown show.

          • hicusdicus

            Good morning small and fluffy! Testosterone clown show. BRAVO! The best description of men that I have ever heard. Your right I can’t stand a woman to be smarter than me but I have finally gotten used to it. If I was chasing you for the thrill of it I would have to be insane but not insane enough to hope that I could catch you.

    • davidcayjohnston

      Columnist here…

      I find cynicism of the kind that opens Ms. Whitaker’s post damaging to our civic debate. First off, it does work, just not so well as it should and for reasons including the ones I spell out above — bipartisan self interest and budget cuts.

      What my column shows is that the reality is far from the promise made by the candidate in 2008. But that does not equal “the FOIA isn’t working.”

  • paulyz

    Glad to see this article admit how Obama failed in his promise for “The Most Transparent Government”. His administration is the exact opposite like most issues Obama ran on.

    • JPHALL

      What, no mention of the lack of funding and oversight by Congress?

    • davidcayjohnston

      Columnist here…

      Actually, as my column notes, I warned about this on Jan. 29, 2009. Other national journalists have since written about this and I link above to one of my subsequent pieces as well.

      The issue JPHall raises – budget cuts by Congress — is addressed in my column. I did not mention the paucity of Congressional oversight, which JPHall is right to point out.

      • paulyz

        Yes, the problems of a growing, powerful Federal Government, not accountable to anyone, much less the People. This is exactly what our Founders, in their Wisdom, warned about. Eventually, without budget cuts, just the interest on our exploding National Debt will consume all the revenue needed to run our Government. This is the serious issue which must be addressed, impossible in our divided Country.

        • davidcayjohnston

          Columnist here…

          Actually the federal government is shrinking.

          Civilian federal employment peaked during the George H. W. Bush administration at a bit more than 3 million in 1990 and 1991 and is now under 2.7 million. Indeed, it has decreased slightly since Obama took office.

          Measured per capita the government is much smaller because, of course, the population is about approaching 30 percent more than in 1990-91 yet civilian employees are fewer.

          If you include judicial, Congressional and military employees the high employment was 6.64 million in 1969and is now less than 4.2. million, a decline of more than a third.

          There are more people working on federal contracts, as Professor Paul C. Light at NYU had documented extensively. But even so the federal government is not growing by the most telling measure — share of GDP.

          As a share of GDP, federal outlays are virtually identical to 1981. They are currently one percentage point higher than the average of the last 35 years.

          The federal budget deficit last Fiscal Year was 2.8% of GDP, down from 9.8% in FY 2009 (which started 10-1-2008).

          And the blended average interest rate for federal spending has been falling. It was 6.6% at the end of the GWBush administration and is now just 2.01%, which is a rate reduction of 70 percent.

  • 1standlastword

    This basically shows that there is less trust between our government and the People. This erosion of confidence makes us less safe and easier prey for our enemies.

    And, Obama’ stripes have certainly changed colors in this his final 18 months: It’s disheartening!

    • Whatmeworry

      Changed??? He’s been this way from day 1. The ONLY information he released was on the W administration nothing on his own failures

    • Changed??? He’s been great from day 1. The ONLY information he
      released was on the W administration failures

      • BOC

        He didn’t release W’s administrative failures. They were quite obvious to all who didn’t have their heads in the sand

    • BOC

      You’ll have to cite these (false) claims, buddy.

  • Whatmeworry

    The last regime that refused all requests for information was Nixon. Obama makes him look like a open book

    • Why Reagan and W were the two worst presidents we had in history

    • BOC

      No! He was just one of the less intelligent ones, ask Rosemary Woods his infamous ‘gatekeeper’.

      • Whatmeworry

        How about Josh Earnest who continually says Barak only found our about it when he watched TV

        • How about Dan Ketter who continually says Barak found our about it before he watched TV

      • I’m as intelligent one like Josh Earnest but more of a moron

  • The last regime that refused all requests for information was Reagan. Obama makes him look like a unopen book

    • BOC

      The last regime that refused all requests for information was W. Bush by sending a request through a designed GOP maize with no end. ‘The dog chasing his tail’ so to speak.

  • BOC

    Funny how this has now become an issue, whereas during 43’s reign of power no one dare broach such a thing. Go figure!

    • davidcayjohnston

      Columnist here…

      BOC what you wrote is simply not true. There was a lot of concern raised by journalists and others during the administration of George W. Bush, as you can see by making a simple Internet search for the hight year time period.

      • BOC

        Well, please show us what you have found.

        • davidcayjohnston

          Columnist here…

          Doing Internet search for the time. January 20, 2001 to January 20, 2009 and the words doing Internet search for the time. January 20, 2001 to January 20, 2009 and the words Bush FOIA or freedom Information Act

          And repeat with variations of words such as: journalist, criticism, study, secrecy, pathological, policy

          You will find numerous articles, like a 2006 NYTimes piece that was spot on. And why in the world what I have written my January 29, 2009, please wait to and my Kolyma Bob but for the history of Bush ministration secrecy? Indeed, if it was not widely understood by Americans that the Bush administration was pathologically secretive why in the world would candidate Obama have made a promise of openness and transparency a major theme of his campaign?

          • BOC

            So, you don’t know anything about what or how to post references or citations.

          • davidcayjohnston

            Columnist here…

            I am not running a personal research service for you. I showed you how to quickly and easily get the information that shows your post is not factual.

          • BOC

            You showed nothing. You’re not doing me a favor, back-up or shut-up.

          • BOC

            Back-up what you say or forever remain silent!

      • BOC

        Again, you are just ranting without facts.