Intellectual Property Law

House Oversight Committee Investigates DHS FOIA Review Practices?EFF's Requests Were Singled Out

By jlynch

Tomorrow the House Oversight Committee is holding a hearing titled, ?Why Isn't the Department of Homeland Security Meeting the President?s Standard on FOIA?? As we wrote last October, redacted DHS emails revealed the agency was targeting certain Freedom of Information Act (FOIA) requests and certain FOIA requesters?such as activist groups, watchdog organizations, and journalists?for an extra layer of review by politically-appointed officials within and outside the agency. The emails further revealed EFF was one of the organizations explicitly targeted, and three of our FOIA requests are mentioned specifically. Given the delay between when we filed these FOIA requests and when we finally received records, we assume our requests and the documents produced in response to them went through this extra vetting.

The Oversight Committee is expected to investigate all this at the hearing tomorrow. However, we now think the problem may be much larger than either the emails indicated or we first thought. Since we wrote that blog post, we have learned through litigation in our social networking FOIA case that not only did DHS drag its feet on producing documents, the agency also failed to release all documents it had that were responsive to our request. In conversations with the DOJ attorney representing the government, we have recently learned that DHS likely has a ?voluminous production? of additional documents concerning how the agency uses social networking sites that it has yet to produce to us.

We have also learned that DHS is not the only agency where this seems to be occurring. In another of our FOIA cases concerning intelligence agencies' misconduct reports we recently learned that two agencies, Department of Defense and Department of State, similarly failed to produce all the documents they had responsive to our FOIA requests when we first requested them. This has led to significant delays in both cases.

We are grateful to the government attorneys on these cases for telling us about these missing documents. Perhaps the DOJ is finally implementing Attorney General Holder?s directive that DOJ attorneys will ?defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.? If so, however, this could indicate a troubling situation?did the agencies fail to release the documents initially due to a political review process?

Uncensored versions of DHS emails recently received by AP may confirm this is true. AP notes the emails ?included allegations that Napolitano?s senior political advisers might have hidden embarrassing or sensitive emails that journalists and watchdog groups had requested.? However, without seeing the documents withheld in our cases, we have no way of knowing.

The emails AP received also show DHS officials were just as frustrated about the political vetting process as members of Congress and the public. Chief Privacy Officer Mary Ellen Callahan wrote in an email to her then-deputy, Catherine Papoi, ?This level of attention is CRAZY.? Papoi called the political reviews ?meddling? and said that, together with ?constant stonewalling? by the department?s top lawyers, they caused delays in the agency?s open records department. Yet neither official seemed able to change the process. In fact, Callahan said she hoped someone would ?FOIA this whole damn process? to discover details of the political reviews.

We are just as frustrated as Callahan and Papoi by the agencies? responses and the significant delays in our cases. These FOIA requests concern important issues the American public has the right to know about, yet in both cases we will have waited a year and a half to two years before we finally get all the documents. Even more frustrating, though, is that we were only able to find out about the agencies? failures to produce all documents by litigating the FOIA requests. Many FOIA requesters deal only with FOIA officials within the agency itself and rarely are able to resort to litigation to force the agency to comply with the FOIA. These requesters are subject to the whims of the administrative appeal process and may never see all the documents they are entitled to under FOIA.

We urge the Oversight Committee to dig deep into the DHS FOIA mess and investigate the FOIA review process at other agencies as well. Agencies should not be allowed to withhold documents or delay the FOIA process for political reasons.

Full post as published by Electronic Freedom Foundation - Deep Links on March 31, 2011 (boomark / email).