Court filings surge in FOIA cases during Obama years

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.

The audit makes clear that "the overwhelming majority of federal agencies are neither fulfilling the president's promise of an open and transparent government for the American people, nor complying with the vital reforms to the FOIA process that Congress demanded," said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, who helped write those laws.

Sen. John Cornyn, Texas Republican and co-author of the 2007 law, said Mr. Obama's pledge to make his administration "the most open and transparent in history" is falling far short of his goal.

The TRAC study found that the State Department saw the largest percentage increase in FOIA lawsuits — a 111 percent jump from the final two years of Mr. Bush's presidency to the final two years of Mr. Obama's first term. Next were the Agriculture Department, a 67 percent increase; the Department of Veterans Affairs, 60 percent; the EPA, 60 percent; Justice, up 50 percent; the Social Security Administration and the Department of Health and Human Services, each up 45 percent; the CIA, up 43 percent; and the Pentagon, up 22 percent.

Among the agencies with fewer FOIA lawsuits under Mr. Obama were the Office of the U.S. Trade Representative, down 67 percent; the U.S. Small Business Administration, also down 67 percent; the U.S. Postal Service, down 57 percent; the Department of Transportation, down 56 percent, and the Merit Systems Protection Board, down 50 percent.

Tom Fitton, president of the public-interest group Judicial Watch, said the administration has a pattern of forcing FOIA requests into court.

"One of the biggest lies of the Obama narrative is the supposed commitment to transparency," Mr. Fitton said. "It's far less transparent than the Bush administration. Just to get a response, in terms of the initial request for documents, we have to sue. We have nearly 1,000 Freedom of Information Act requests, and we're coming up on 100 Freedom of Information lawsuits against the administration. Everybody agrees that the federal government is doing more than ever, but the transparency hasn't kept up with the increased activity."

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