Freedom of the Press Foundation has filed a Freedom of Information Act (FOIA) lawsuit against the Justice Department for all correspondence the agency has had with Congress over proposed FOIA reform bills that died last year in Congress, despite having unanimous support of all its members.
More than a year and a half ago, we received an anonymous tip that the Justice Department was trying to halt the modest and uncontroversial FOIA reform bills of 2014 that were supported by huge majorities in both houses of Congress. We filed a FOIA request for all emails and other communications about the bills between the congressional offices sponsoring the legislation and the Justice Department to uncover what the agency’s true position was.
The anonymous tip we received turned out to be prescient: At the end of last year, despite a remarkable level of support from both parties, the bills did not become law because they were held up at the last minute by then-Speaker of the House John Boehner. The Washington Post later reported that the legislation failed based on objections from a few key federal agencies—most notably the Justice Department.
What made the Justice Department’s reported actions particularly reprehensible was that the legislation’s language—and even more specifically, the precise part that the Justice Department was reportedly worried about—was based virtually word for word on the Justice Department’s own FOIA policy.
In 2009, when the Obama Administration first promised to be the “most transparent administration ever,” the Justice Department issued guidelines for how all federal agencies should interpret FOIA requests, including:
[T]he Department of Justice 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.
The FOIA Improvement Act of 2014 would’ve made merely this policy the law at the agency level. The disputed section read:
An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law.
As you can see, the two passages are virtually the same. The similarity raises significant questions, including whether the Justice Department is upholding its own guidelines in the first place, and why the agency would be afraid of its own policies becoming law.
For a year and a half the Justice Department has not sent us a single page of correspondence (virtually all the other agencies we asked sent us emails or other documents within a month or two). Today, we are filing suit to find out why the Obama Administration’s Justice Department is preventing legislation based on its own supposed policy from becoming law.
We’ll keep you updated as the lawsuit progresses.
Special thanks to our amazing legal counsel working on this case, D. Victoria Baranetsky and Marcia Hofmann, who crafted the excellent complaint that you can read in full below.