The Freedom of Information Act is getting worse under the Trump administration
Camille Fassett
March 14, 2019
Donald Trump speaking at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.
More than two years ago, a developer and researcher wants to know what changes the Travel Security Administration (TSA) made to its pat-down procedures at airports around the country. A TSA spokesperson acknowledged changes in a Bloomberg article on Mar. 3, 2017, so days later, Parker Higgins — now Director of Special Projects at Freedom of the Press Foundation — filed a Freedom of Information Act (FOIA) request to learn more.
It’s almost April 2019, and Higgins has yet to receive any documents responsive to his request. Higgins filed it through government transparency website MuckRock, so he’s been automatically following up on his request every month for nearly two years. At times, TSA has given him an estimated date at which his case might be complete. But the dates fly by, with no real updates provided to the requester.
Higgins is not alone in being kept waiting for documents. The data that formed the basis for an article my colleague Freddy Martinez and I wrote about border agencies’ asset seizures was obtained through a FOIA request that was filed about a year before any records were released. Another requester who filed a request with the FBI in July of 2018 was told that the agency was working on processing requests that were filed in 2016.
Waiting years for disclosure of records through FOIA is not unusual, and it’s not unique to requesters in the Trump era. In rare cares, requesters can even wait decades — like Monte Finkelstein, who requested records in 1993 that he hoped would add to a history book he was writing — only to give up 20 years later and publish his book without them.
For all its flaws, FOIA remains a critical tool for journalists, activists, and community residents who seek to illuminate government activities. But it’s getting harder.
“On a practical level, it’s becoming more and more difficult for individuals—including journalists—to pursue FOIA requests as individuals,” corroborates First Amendment and FOIA attorney Kevin Goldberg.
On Dec. 28, 2018, the Department of the Interior filed major proposed changes to the way the agency processes FOIA requests. Critics say if adopted, the new rules could make it easier for the agency to deny FOIA requests, take more time to respond, and place a heavier burden on requesters to state even more explicitly to state what they are looking for.
One proposed change could place a monthly cap on the number of FOIA requests each group or individual can file monthly. The Department of the Interior FOIA Policy Office did not immediately respond to questions about the status of these changes, but public records attorneys are concerned.
“Not processing requests that require research is just silly,” said Adam Marshall — an attorney at Reporters Committee for Freedom of the Press—on the Interior Department’s changes. “Every request requires research.”
“They are depriving the American people of their right to know what the government is doing — they are only going to cause themselves more fights and more litigation,” Nada Culver, senior counsel at The Wilderness Society, told The Hill.
Marshall notes that ex-EPA Administrator Scott Pruitt’s decision not to proactively disclose his official calendar is another example of the way agency brings unnecessary litigation itself.
“There have been so many FOIA requests for his calendar, which is a basic thing that should have been made available online anyway,” he said “The EPA could have saved itself many lawsuits.”
The Project in Government Oversight (POGO) — a transparency watchdog organization — notes that according to the Trump administration’s own data, the Interior’s FOIA office has seen a 30 percent spike in FOIA requests filed between fiscal years 2016 and 2018.
Departments from the Justice Department to the EPA and the Interior have been hit by huge increases in FOIA lawsuits under the Trump administration.
FOIA lawsuits against the Department of Justice in fiscal years 2001 — 2018
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Goldberg says fundamental changes would require “a shiftin leadership, a shift in tone and attitude, and critically an increasein funding. “We need to think smarter about FOIA, and thisadministration, like several prior, has not even begun to think aboutwhat that would look like meaningfully.”
Correction: A previous version of this article confused watchdog organization Project on Government Oversight (POGO) with international openness partnership the Open Government Partnership (OGP).