The Department of Justice’s Office of Information Policy (OIP) is the top cop that’s supposed to ensure all government agencies—including DOJ—comply with an important law: the Freedom of Information Act (FOIA).
OIP is also supposed to make sure all government agencies—including DOJ—have implemented President Barack Obama’s January 2009 FOIA memorandum and Attorney General Eric Holder’s March 2009 FOIA guidelines, both of which say FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”
Over the past several years, OIP has boasted that it’s doing a bang up job on its oversight duties. But as the National Security Archive has documented again and again and again, OIP misleads Congress and the public about its FOIA success stories. Journalist CJ Ciaramella reported earlier this year that OIP has not challenged a single FOIA exemption used by any government agency to withhold records from requesters since 2009. OpenTheGovernment.org has pointed out that “OIP acts more a cheerleader celebrating every time an agency does something right than as the schoolmarm making sure all of the agencies did their homework.”
So how does one find out what’s going on behind the scenes at OIP?
File a FOIA request.
That’s exactly what I did last month. I sought the first 200 pages of emails sent or received by OIP Director Melanie Ann Pustay from July 1, 2012 to November 1, 2012 that mentioned the word “FOIA.” I also requested a copy of OIP’s administrative appeal log from 2011.
Two weeks later, I received a reply from OIP, one that stands as the most bizarre response to a FOIA request I have received to date, surpassing FBI, which said last year that I needed to get the high value Guantanamo prisoner I sought records on to sign a privacy waiver before the agency would process my records request.
OIP’s September 3 letter, signed by attorney Vanessa Brinkmann, said my FOIA request was being closed because the language and timing of my request closely matched that of another requester who allegedly failed to pay his bill. In no uncertain terms, OIP appears to have accused me of engaging in a vast FOIA conspiracy by using my news media status, which allows me to obtain a fee waiver, to get the documents the original requester sought without paying for it.
“Your request for Ms. Pustay’s e-mails containing the word “FOIA” is identical in both wording and time frame to that of another requester, with the only variable being that you seek two hundred pages rather than one hundred. Likewise, your request for the administrative appeal log is worded identically to that of another requester, with the exception of a broader time frame. Further, the timing of your requests … were made on the same day that this Office notified the original requester via e-mail that his requests were being closed administratively for failure to pay accrued fees, suggest that your requests are being made on behalf of the original requester ... We will not process these requests until the original requester has paid the outstanding fees he has accrued in the processing of his two requests, along with all applicable interest charges,” Brinkmann wrote.
I posted Brinkmann’s letter and tweeted about it. I then sent a copy of the letter to a handful of open government experts to find out if they have ever heard of a government agency closing a FOIA request because someone else didn’t pay their bill. None had. Then I checked the regulations she cited to justify OIP’s radical move.
Before I get to that, here’s the backstory about how this FOIA request came about.
People who are familiar with my work know I file hundreds of FOIA requests with various government agencies seeking a wide-range of documents. Often times, I will file FOIA requests seeking documents about a government program after reading about it in a news report or I will request a document or report cited in a news article that hasn’t yet been released publicly. Other times, I will pore through FOIA logs to see what other requesters are asking for and if something interests me I will file a request with a government agency for the same records. Lastly, the same way reporters receive tips about stories; I receive tips about FOIA requests I should file.
That’s what happened in the case of Pustay’s emails. It was suggested to me on August 21 that I consider writing a story about OIP’s less than stellar track record when it comes to enforcing FOIA compliance and that my research would likely benefit by seeking emails from Pustay that mentioned word “FOIA.”
Sounds like a good story, I thought. I've written about OIP before. So I opened up my FOIA template and added this sentence:
I am seeking a copy of the first 200 pages of emails received by Melanie Ann Pustay, Director of the Office of Information Policy, that contain the word “FOIA” between July 1, 2012 and November 1, 2012.
I also added this sentence to my request:
I am also seeking a copy of the Administrative Appeals Log for the years 2011, 2012 and 2013 to date.
The rest of my letter consisted of boilerplate legal language I use in all of my requests. I copied and pasted my letter into the efoia portal and filed it electronically. I figured the waiting period would be at least six months to a year before I received a response.
Government agencies can “aggregate” FOIA requests and “charge accordingly” if they suspect that a requester or a group of requesters are coordinating with each other to try and skirt search fees by dividing a request into series of requests, according to federal regulations governing the procedure for the production of records under FOIA.
Aggregating requests. Where a component reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the component may aggregate those requests and charge accordingly. Components may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, components will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated. [emphasis added]
Brinkmann cited that section of the regulations in her letter to me and noted that my request was being “aggregated." But the regulations do not say government agencies have the authority to close FOIA requests if someone else did not pay their bill or if they suspect requesters are coordinating with each other.
Anne Weismann, an attorney with the government watchdog group Citizens for Responsibility and Ethics in Washington (CREW), read Brinkmann’s letter to me. Weismann said she agreed that Brinkmann was “misapplying” the regulations.
“The regulations allows them to create a presumption to aggregate but it doesn’t say that your request should be closed,” Weismann said. “Shutting everything down under a strange interpretation of regulations is flat out wrong. They didn’t even give you an opportunity to pay the fee. In my mind, OIP really doesn’t want transparency when it comes to their actions. It’s outrageous. It’s outrageous. How could they say they are faithfully implementing [Obama’s and Holder’s FOIA regulations] when they can’t even apply it to themselves?”
The accusations OIP leveled against me was upsetting. I didn’t know who the original requester was. I contacted the person who gave me the tip. That person didn’t know either. About an hour after I circulated Brinkmann’s letter I received an email from Donald Vance.
“Saw your letter and just fell over laughing,” Vance said. “I am the original requester for those Pustay records.”
Donald Vance is well known in the FOIA community. He is a “frequent FOIA requester” who has filed thousands of requests over the past couple of years with CIA, FBI and other government agencies.
Vance is also known for suing former Secretary of Defense Donald Rumsfeld and the U.S. government for allegedly torturing him while he was working as a contractor in Iraq in 2006. Vance had notified the FBI about what he said was illegal activity in Iraq involving bribery and weapons dealing. The U.S. military responded by detaining Vance at maximum security Camp Cropper in Iraq where he said he was tortured for more than three months. His case was denied and his attorneys appealed to the Supreme Court earlier this year to take up his case but the High Court rejected it.
Vance explained to me that he filed his FOIA request for Pustay’s emails last December and refiled it in February due to an administrative snafu on OIP’s end. OIP responded by sending him a letter last March that said the office located responsive records and would begin processing his request. OIP’s acknowledgement letter also said, “Because you are seeking only the first 100 pages of records, there will be no fees associated with the processing of this request.”
So what’s Brinkmann talking about?
Vance said his fee dispute wasn’t with OIP, which Brinkmann’s letter to me suggested, it was with CIA. It was over a $50 bill for processing fees that he has since settled. But his check, made out to the Department of Treasury, has not yet been cashed.
“The CIA has notified other agencies to stop any and all other requests I made,” Vance said. “My right to FOIA is now under embargo.”
Indeed, on August 21, the same day I filed the FOIA for Pustay’s emails, Vance received a letter from OIP stating that the agency was closing his request due to the fact that he didn’t pay his bill to CIA. Five days later, Vance received a letter from FBI notifying him that the agency was closing every single one of his pending FOIA requests—about 400—because he owed CIA $50. He plans on refiling all of his requests once his check clears.
Vance did not request the administrative appeal log in his FOIA request and OIP did not acknowledge it when it sent a response letter to him last March. OIP did, however, note that it would not be turning it over to him when he was told OIP was closing his requests. Vance said he has no idea how OIP came to the conclusion he sought the administrative appeal log and assumes it's a mix-up with another requester. OIP would not discuss the matter with me.
Weismann, the CREW attorney, said, “agencies get personal about a frequent FOIA requester” and it appears the government found a way to shut Vance down. In the letters Vance has received from OIP, FBI, CIA and other government agencies he has been informed that he must now pay all fees in advance, plus interest, before those agencies will process his request.
What does this have to do with my request? OIP never called me to discuss it. I would have happily paid the $50 fee while also making a case that I was not filing on behalf of Vance and that the requests should not be “aggregated.” In fact, charging me the fee Vance incurred is what the regulations said OIP should have done.
I reached out to OIP public liaison Laurie Day. She passed my message to Brinkmann who called me to discuss it. I told Brinkmann that I filed this request based on a tip and that I did not know the identity of the original requester was when I filed it. I asked Brinkmann again and again to point out where in the regulations it says that OIP could close my request if someone else doesn’t pay a bill. She couldn’t provide a response but defended her interpretation of the regulations. She invited me to appeal OIP’s decision directly to her.
“I think the regulations very clearly support what we did,” Brinkmann told me. “You’re right that this is somewhat unprecedented and it doesn’t happen often. But this was an uncommon request [Pustay’s emails]. I stand by my determination in the letter based on the facts I had at the time.”
Amy Bennett, the assistant director at OpenTheGovernment.org, said, “OIP’s logic in determining you are trying to split fees with another user is a stretch of the language of the statute.”
“As the office charged with providing guidance to the rest of the federal government on how to meet President Obama and Attorney General Holder’s promise of openness, OIP should be setting an example of how an agency can make it easier for requesters to access government records,” Bennett said. “In this instance, it looks like OIP is instead inappropriately aggregating unique requests to deny the public access.”
Scott Hodes, a former FOIA attorney at the Justice Department who is now in private practice and operates the indispensible, The FOIA Blog, agreed with Bennett.
“They make all kinds of accusations toward you but do not provide any evidence,” Hodes said via email. “A court would never uphold their action. In fact, I think you should let them know you will take it to court and will get attorneys fees against them if they persist. Further, I don't know how a failure to pay $50 to the CIA has any impact on requests to DOJ. Further, this response is in contradiction to the Obama/Holder FOIA policy.”
I’ve since filed a FOIA request for the “processing notes” related to my request for Pustay’s emails to determine what went on behind the scenes at OIP when I filed my FOIA and how it was handled when OIP received it.
Mark Zaid, a Washington, D.C.-based lawyer who has filed numerous FOIA lawsuits against the CIA, said, “I have never seen what you have now encountered, which is just bothersome to say the least.”
“There is nothing in the regulations that says they have the authority to close your request,” Zaid said, who has worked on FOIA issues for two decades. “I’m even more disappointed that a lawyer cited that in the letter when there is no reasonable interpretation that fits the facts in your situation. This is another example where FOIA offices try to exploit the inexperience of FOIA requesters to avoid their FOIA obligations. A majority of the time a requester would not know what to do and throw their hands up in frustration and just walk away. If you’re not a sophisticated FOIA user, like you are, you’re going to fall victim to their bullying tactics and back off. At the very least, they could have called you.”
Last year, the Office of Government Information Services (OGIS), otherwise known as the FOIA ombudsman, wrote a blog post titled, “How to Invite a FOIA Lawsuit.” Failing to speak with a requester was on the top of the list of “litigation invitations.”
We have observed that communication with requesters is not only good customer service, but it the single most efficient and cost-effective way to avoid disputes. Requesters have told us that if an agency at least lets them know what is going on with their request, they will be less likely to file suit in those cases. We have also seen that once we get involved and just explain the FOIA process to requesters, they are also less likely to file suit. The FOIA process can confuse those on the outside looking in. If you aren’t willing to talk to requesters and let them know what is going on, you are, in their minds, giving them the green light to run to the court house to file suit.
I asked Brinkmann why she didn’t call me to discuss this issue. She said she was sorry she didn’t. I contacted Miriam Nisbet, the OGIS director. I sent her a copy of Brinkmann’s letter and asked if she could comment issue. Nisbet declined but encouraged me to “come back to OGIS before considering litigation, as that's where mediation can make a difference.”
Zaid said he’s also disturbed by actions OIP and other government agencies took against Vance.
He noted that every decade there are several requesters who become the dominant FOIA requesters and, “obviously, Vance is now one of those people.”
“He is doing what the [FOIA] statute allows them to do. You would think that the agencies would work with a requester like him,” Zaid said. “For example, it’s the 31st day and he didn’t pay. Call him up and say, ‘I thought I would call you and just work with you.’ What did these agencies accomplish by canceling his requests? It’s nothing more than spiteful. That’s all it is. They wasted time and government resources. Vance will resubmit and it will cost the government more time and more money.”
Nate Jones of the National Security Archive said he’s not surprised by OIP’s response.
“Just the latest in a long line of attempts by the DOJ OIP to use their outdated FOIA regulations to stymie FOIA requesters,” Jones said. “The sad irony was that the DOJ OIP was originally charged by Congress to protect and enforce the rights of FOIA requesters, not eviscerate them."