Yesterday the House Committee on Oversight and Government Reform heard from journalists and activists who make frequent use of the Freedom of Information Act (FOIA). Eleven in all, the committee witnesses delivered a powerful verdict that federal agencies do a terrible job of responding to document requests — across the board, just about all the time. “[I]t has become clear that only by filing litigation does a federal agency begin to produce documents in its possession responsive to the FOIA request,” said lawyer Cleta Mitchell of the process.
This morning the panel, under the leadership of Rep. Jason Chaffetz (R-Utah), welcomed input from government officials who handle FOIA requests. The session got contentious and political, with Chaffetz and others pressing Mary Howard, the IRS’s director of privacy, governmental liaison and disclosure, on how her agency handled requests for the e-mails of former IRS official Lois Lerner in the heat of the controversy over the targeting of nonprofit groups. Democratic members of the panel, including Elijah Cummings of Maryland, questioned State Department Chief FOIA Officer Joyce A. Barr about just what e-mails the department had received from former secretaries of state Colin Powell and Condoleezza Rice — a line of questioning that may contextualize former secretary of state Hillary Rodham Clinton’s use of personal e-mail during her 2009-2013 tenure.
As he presided over the two sessions, Chaffetz happened upon a discrepancy: The journalists/activists painted a more grim picture of the state of FOIA than did those charged with administering it. Small wonder there, of course. But Chaffetz cited the agencies’ self-evaluations of their openness records, which he said were generally positive — and especially so at the Justice Department.
“If you sat and listened to some testimony of today and compare it to yesterday … we got as wide of a swath of people as we possibly could, and there wasn’t anybody that believed that, in general, things were going well,” said Chaffetz. “And yet when you do your own scorecard, for instance at the Department of Justice, you’re solid green! You gave yourself five out of five on presumption of openness. Five out of five, on an effective system in place for responding. Proactive disclosure. Are you kidding me? The Department of Justice gives themselves a five out of five on proactive disclosure. You really think anybody in the world believes the Department of Justice is the most — they’re at the top of their game, they got an A-plus, five for five? Do you really believe that?”
“I do,” responded Melanie Anne Pustay, Director of the Office of Information Policy at the Justice Department. “I absolutely do.”
“You live in la-la land,” quipped Chaffetz. “That’s the problem.”
Three years ago, the oversight committee gave the Justice Department a “D” grade on FOIA.
Here is the “scorecard” document to which Chaffetz was referring.