Frequent users of the Freedom of Information Act say that in far too many cases, lawsuits have become the only way to get information from the Justice Department — a curious roadblock, particularly when the Obama administration touts its openness.
The growing backlog of FOIA requests and lawsuits that result from inaction show that department response has improved little – or even worsened – under the current administration despite repeated promises from President Barack Obama and Attorney General Eric Holder to improve transparency.
“Generally speaking, we’re not seeing a big change between the last administration and this one,” said Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, or CREW. “They put the right policies in place, but it hasn’t filtered down.”
CREW has filed suit against the Justice Department seeking records pertaining to its investigations of members of Congress.
Nate Jones, FOIA coordinator for the non-governmental research group National Security Archive, said in most cases timid leadership is to blame for inaction, which he said disappoints him because the DOJ is responsible for encouraging other agencies to respond to FOIA requests.
“It’s an institutional belief that documents are too sensitive to be released to the public,” he said. “Even if the law says they’re not and the Attorney General says they’re not, people just think they are.”
That hesitancy may account, in part, for a growing backlog of requests and increased litigation in the last couple years.
In FY 2010, the Justice Department received a total of 63,682 new FOIA requests and had 7,538 remaining at the end of the year, according to an annual FOIA report released by the department. About 3,340 requests were appealed to the department’s Office of Information Policy.
The number of total new requests has increased steadily from 52,010 in 2005, but the number of requests remaining at year’s end over the past five years peaked at 8,637 in 2005 during the Bush administration, dropping to 6,302 in 2008 before starting to climb again.
But Jones said requesters often sue just to push things along because appeals or negative reports don’t produce the same kind of attention from supervisors.
“We’ve found that lawsuits raise the eyebrows of everyone in the government much more than a negative FOIA report,” he said.
And processing requests and defending lawsuits doesn’t come cheap. In 2010, the department spent about $52 million in FOIA processing costs and about $7.5 million on FOIA-related litigation, up from about $43 million for processing and $6.6 million for litigation in 2009.
Processing fees do little to defray those costs, bringing in only about $201,491 – or 0.38 percent of total FOIA costs – according to the department’s report.
The Justice Department had not returned repeated requests for comment, but a lawsuit recently filed by CREW shows what Weismann said has become the DOJ’s common refrain.
On June 16, CREW sued the DOJ for failing to respond to three separate requests for documents. Their requests – sent to the department’s Criminal Division, FBI and Executive Office of United State Attorneys – sought files from multiple investigations into the lobbying of the late Rep. John Murtha (D-Penn.) and earmarks he obtained for various organizations.
Allegations of corruption surfaced around campaign contributions Murtha received during his tenure at the House, earning him one of five spots on CREW’s Second annual “Most Corrupt Members of Congress” report in 2006.
In one case, Murtha’s former aide-turned-lobbyist Paul Magliocchetti was convicted for illegally funneling campaign contributions from 2003 to 2008, including $2.4 million to Murtha. In turn, Murtha allegedly earmarked $7.6 million for clients of PMA Group, the now-defunct lobbying company Magliocchetti founded and owned.
The DOJ opened an investigations of Murtha but never prosecuted him, and now it’s refusing to release documents that may show why, Weismann said.
CREW has also challenged the department’s failure to provide documents on its decision not to prosecute Rep. Jerry Lewis (R-Calif.) amid accusations of his close ties to lobbyists.
“Why is it that members of Congress can do seemly illegal things and not get prosecuted?” Weismann said. “We are troubled because it seems like this is a lack of transparency through and through, and I think there is a great public interest here.”
The EOUSA initially refused to release Murtha’s files on privacy grounds but said it would search for the documents after Weismann pointed out Murtha had died a year prior to their request and therefore couldn’t bring any privacy claims, according to court documents.
But Weismann never heard back from the EOUSA. And requests to the FBI were denied and appealed to the Office of Information Policy, from which they have received no further action. CREW alleges in its complaint that the Criminal Division, FBI and EOUSA all exceeded the statutory limit on time allotted to respond.
CREW submitted its requests for documents on Murtha between February 10 and February 16, putting the timing of its lawsuit right around the reported average of 130 days for responding to what the DOJ calls “complex” FOIA requests – those seeking many documents from multiple offices.
“[DOJ] has historically been bad, and we haven’t seen as much improvement as we would have liked to see under Obama,” Jones said. “They need to hire FOIA professionals that aren’t afraid to make bold decisions and … to get documents out the door.”
