Court filings surge in FOIA cases during Obama years

Records actions rebut promise of openness

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A study has found that more federal court complaints were filed during the first term of the Obama administration to force the government to abide by the Freedom of Information Act than were filed against the administration of President George W. Bush in his second term.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University said the FOIA filings in the last two years of Mr. Bush’s second term and the last two years of Mr. Obama’s first term showed a jump of 28 percent — from 562 to 720. Overall, there has been a 6 percent increase in these court cases from the Republican’s second term to the first term of Mr. Obama, who took office pledging to create the most transparent administration ever.

“Partly because President Obama has, since his first few days in office, made sweeping promises about his administration’s support for open government, the somewhat surprising increase in FOIA filings — especially in the last two years — adds credence to the criticism of some activists about the Obama administration’s actual commitment to this goal,” the report stated.

Christopher Horner, a senior fellow at the Washington-based Competitive Enterprise Institute, is in an open-records battle with the Environmental Protection Agency after uncovering that EPA Administrator Lisa P. Jackson was using an alias email address to conduct official business. He said the administration’s purported commitment to transparency doesn’t measure up.

“The reason is that they just aren’t that into transparency now that it’s more than a talking point, and no longer about the other guy,” Mr. Horner said. “Their pollster apparently told them that people wanted to hear they would be transparent, but it does not seem that there were ever any plans to actually be so.”

The White House had no comment about its FOIA record.

Going to federal court is a last resort for individuals seeking government records. Under the 46-year-old law, a FOIA request must begin at the administrative level in any of the hundreds of executive branch agencies.

Officials at those agencies decide whether to release or withhold requested records. If denied access, a person can appeal to a second level of administrative officials. Only then can a person appeal a denial to federal court, claiming the agency is violating federal law. Relatively few people pursue their cases that far.

Mr. Horner pointed to the EPA and the Energy Department using 14 private email accounts and other examples as evidence of “a governmentwide, deliberate, often elaborate move to hide what they’re up to.”

“They seek to avoid creating records, hide those records that manage to get created and even destroy records in apparent violation of the federal criminal code,” he said. “Their means are moving government over to private email accounts, private computers and even arranging for private servers, electronic ‘safe houses,’ to conduct the business they don’t want the taxpayer or historians to see.”

Nor is the Syracuse-TRAC report the first to criticize the administration on this score.

A Freedom of Information Act audit by the National Security Archive of George Washington University recently found that 62 of 99 government agencies haven’t updated their FOIA regulations since Attorney General Eric H. Holder Jr. advised department heads in March 2009 to cut through red tape and release more documents sought by the public.

Justice is one of the worst offenders of FOIA compliance, according to that study.

Fifty-six federal agencies have not updated their FOIA regulations since the passage in 2007 of the Open Government Act, which mandated reforming agencies’ fees, instituting tracking numbers for requests and publishing specific data on their FOIA output, the National Security Archive found.

Lawmakers from both parties blasted the Obama administration’s transparency record upon the release of that study.

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