The FOIA Watchdog chats with Lucy Dalglish, director of the Reporters Committee for Freedom of the Press, and Jennifer Lynch, staff attorney for the Electronic Frontier Foundation, about this year’s pressing FOIA issues.
How has the Obama administration’s handling of FOIA issues differed
from that of the Bush administration?
Lucy Dalglish: The Obama administration at least says the right things. But there’s somewhat of a disconnect between what we consider to be “transparency” and what they think that means. The White House is supportive of efforts to release “high value data sets” and other records that can be used by private industry to make money or to provide statistical information. They love technology. But we don’t have reporters calling us to say: “Help! I’m having trouble locating a high-value data set!” Rather, they’re looking for info that would help them engage in oversight of government operations. They’ll tell us: “Help! I know the government has this ONE particular document(s) that will help me with my story, but they’re citing exemption after exemption as to why I can’t have it.” So in that respect, there’s not much change.
Jennifer Lynch: It’s hard to figure out how to say this, but it often feels like the way that the Obama administration is handling FOIA requests is worse than the Bush administration. And it’s hard to know if that’s because we were so excited by Obama’s and Holder’s statements on transparency at the beginning of the administration—then it was business as usual. In my opinion, there definitely hasn’t been any change. It hasn’t gotten any better. The Obama administration has held on to a lot of the justifications that the Bush administration used to withhold records. The agencies are still applying the exemptions pretty liberally to try to withhold as much information as they can.
What’s been the most surprising part of your organization’s FOIA-related work as of late?
Dalglish: There are a couple of things going on that are quite alarming. The number of states that are trying to put government-employee e-mail off limits continues to escalate. Also, there are a number of states that are suddenly revising their open records statutes because of perceived problems with alleged “academic freedom” issues at publicly funded colleges and universities. Most states already have adequate protections for appropriate academic research. We’ve been watching this one for the past year. The hysteria from professors has never made sense to me. If professors are being punished for the content of their research, just make it illegal to discipline/punish a professor based on the content of their research. Don’t hide the public documents related to the research.
Lynch: Recently we’ve seen a couple agencies that have responded in ways that we never saw before with the Bush administration. So, for example, with the Department of Homeland Security, we have a court-signed stipulation that the agency will treat us [the EFF] as the news media requester. We’ve just had a big runaround with ICE [Immigration and Customs Enforcement] that lasted probably two months where ICE refused to treat EFF as a news media requester. They were even insinuating that the way that the Department of Homeland Security responds to FOIA request is not necessarily the way that ICE responds to FOIA requests. So, they were not recognizing that they are under the DHS umbrella. That was sort of odd. Another thing that we’ve seen come up recently is that the FBI has responded to our FOIA requests, and a few other FOIA requests by other organizations, by claiming that the material that is responsive to the FOIA request is outside the scope of the FOIA request! Instead of claiming one of the nine exemptions to withhold or release material, they’re taking this weird approach and action. Those are two things that I never even saw during the Bush administration.
Any thoughts on the EPA’s proposed FOIA module/ portal?
Dalglish: It’s an impressive effort. More agencies should be encouraged to be innovative in this way. (Although it’s not a surprise, because several EPA lawyers are former RCFP legal fellows!)
Lynch: There’s a lot more that the government can do to make responding to FOIA requests quicker and easier. Unfortunately, a lot of that needs to happen on the back end. It needs to happen in how agencies store records and process records even before they respond to a FOIA request.
Why do we need a new FOIA module if we also have the new OGIS FOIA site?