DOJ’s Top Information Officer Rebuts Statistic Criticism
By Elizabeth Murphy | March 13, 2012 1:38 pm

The Justice Department official in charge of Freedom of Information Act policy pushed back Tuesday against critics who say the Barack Obama administration is falling short of its goal of open government.

Melanie Pustay (Andrew Ramonas / Main Justice)

Melanie Pustay, director of the Justice Department’s Office of Information and Privacy, told the Senate Judiciary Committee that her office’s FOIA  figures for fiscal year 2011 were tabulated correctly. Those figures show the DOJ answered 94.5 percent of its FOIA requests last year.

On Friday one of Pustay’s predecessors, Daniel Metcalfe, the founding director of her office, said those numbers appeared to be “grossly wrong,” and “for [the department] to falsely claim that it ‘continues to lead by example’ has now become sad to the point of being pathetic, as is the notion that it is doing more today than ever in the past to promote FOIA disclosure.”

Metcalfe, who now serves as a law professor at American University, told Atlanticwire that his own calculations of the department’s statistics show a large difference in backlogged requests. Using the department’s own annual reports, Metcalfe found that the DOJ had reduced its pending aggregate FOIA requests only by 4.5 percent in the past two years — refuting the 26 percent decrease the DOJ was touting in its year-end release.

There is an almost 50 percent difference between the backlog requests and pending requests, Metcalfe told Atlanticwire. In 2011, the backlog was 3,816 and pending requests were 6,987, according to the story.

Responding to a question about the story from the committee, Pustay explained that “pending” refers to requests that remain open when the fiscal year begins, while “backlog” means the request is pending beyond the statutory timeline.

Pustay said the Justice Department gets up to 5,000 FOIA requests per month. “Having numbers of 3,000 or 5,000 in pending or backlog is totally logical,” she told the committee.

Sen. Charles Grassley, the committee’s ranking member, also grilled Pustay on the department’s recent “Rosemary Award,” for the most secretive federal agency, given by the watchdog group, National Security Archive.

Pustay highlighted the department’s accomplishments in the last year, including launching FOIA.gov and two new initiatives Attorney General Eric Holder announced Monday as part of Sunshine week.

“I think we have a strong record, and I stand by it,” she said.

Update: In a statement to Main Justice, Metcalfe said this is the “third explanation” the department has given for the number discrepancy in the past few days. He said Pustay’s reasoning “is even less logical than the other flawed ones were.” The department’s pending-backlog ratio for 2011, he said, is “far out of line with backlog figures that are reported at other agencies,” including the FBI.

“The Department in fact received the same number of requests this year as last year, so that 5,000 figure does nothing to explain such a sudden discrepancy,” he said.

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