Last week, as she does every year around Sunshine Week, Melanie Pustay went to The Hill and testified before a congressional committee about how great government agencies haven been doing responding to Freedom of Information Act (FOIA) requests and providing requesters with responsive records.
Pustay, the head of the Department of Justice’s Office of Information Policy (OIP) whose job is to ensure DOJ and other government agencies comply with FOIA, said her office is “fully committed” to “achieving the new era of open government” that President Obama and Eric Holder promised back in 2009.
“We have accomplished a great deal over these past five years,” Pustay said in her opening statement in testimony before the Senate Judiciary Committee and proceeded to rattle off flawed statistical numbers.
That line of testimony will sound familar to anyone who has been paying attention to Pustay. Over the past several years, Pustay has boasted that OIP has been doing a bang up job on its oversight duties. But as the National Security Archive has documented again and again and again, Pustay misleads Congress and the public about her office's FOIA sucesses.
Well, as the Archive’s Nate Jones pointed out again on the indispensible Unredacted blog, lawmakers weren’t lapping up Pustay’s claims about the “most transparent administration in history.” She was grilled by lawmakers about her agency’s own failure to live up to Obama’s day one transparency promises, which frequent requesters know have not materialized.
“Until the Department of Justice Office of Information Policy testifies on the real problems of the FOIA processes, FOIA won't get better,” Jones told me. “OIP's job is to enforce compliance with FOIA, not to trot out massaged numbers and claim that FOIA is working better than ever.”
Indeed, the Archive’s annual FOIA audit underscores how poor of a job Pustay has been doing since she became head of OIP in 2007.
“Nearly half (50 out of 101) of all federal agencies have still not updated their Freedom of Information Act regulations to comply with Congress's 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama's and Attorney General Holder's 2009 guidance for a ‘presumption of disclosure,’” according to the audit.
But it gets worse. The Associated Press conducted its own analysis and reported Sunday that “More often than ever, the administration censored government files or outright denied access to them last year” in response to FOIA requests.
The Obama administration “cited more legal exceptions it said justified withholding materials and refused a record number of times to turn over files quickly that might be especially newsworthy,” according to the AP’s analysis.
“The government's own figures from 99 federal agencies covering six years show that halfway through its second term, the administration has made few meaningful improvements in the way it releases records,” the AP reported. “In category after category - except for reducing numbers of old requests and a slight increase in how often it waived copying fees - the government's efforts to be more open about its activities last year were their worst since President Barack Obama took office.”
These statistics are the reason I alone have filed nine FOIA lawsuits over the past year. It’s becoming increasingly difficult to obtain records through a typical FOIA request and it seems litigation is the only way to quickly access government records. Moreover, the massive backlog means it can take years to obtain responsive records from government agencies through a standard FOIA request.
In fact, in her testimony, Pustay made it appear as if government agencies were turning over more records because she said they were processing more FOIA requests than ever before. But she failed to disclose that these same government agencies have not reduced their FOIA backlogs by 10 percent annually as Attorney General Eric Holder called for in his 2009 FOIA memorandum.
Dan Metcalfe, the executive director of Collaboration on Government Secrecy at American University's Washington College of Law and the founding director of OIP, pointed this fact out during his testimony before the Judiciary Committee.
“It appears that the governmentwide backlog of pending FOIA requests did not at all decrease in the years following [Holder’s] Open Government Directive, let alone decrease by ten percent each year as mandated,” Metcalfe told the Judiciary Committee. “Rather, it actually increased from Fiscal Year 2010 to Fiscal Year 2012 (the most recent year for which such aggregate figures are available). And at the same time, remarkably, the Justice Department’s own backlog of pending requests also increased, from 7786 to 10,298.”
Metcalfe said the fact that Pustay’s own agency has failed to reduce its FOIA backlog “should be a matter of concern today for more than one reason.”
“The awkward fact that the Justice Department’s FOIA backlog has been allowed to worsen over the past three years is bad enough for its own FOIA requesters,” Metcalfe said. “But when the ‘lead’ government agency for the governmentwide administration of the FOIA fails so badly to reduce its own backlog as mandated, it makes it much harder for it to press other departments and agencies to dutifully comply with that mandate.”
Late last year, I filed a FOIA request with OIP for all of Pustay’s emails dating back to 2009 that mention FOIA. Her office tried to shut down my request (I intend to write about that in a separate post this week after records I obtained through FOIA described what took place). I’m still waiting for responsive records. But I believe Pustay's communications will shed light on the truth about the Obama's administration's FOIA record.