Whose information is it? The politics of FOIA
Posted: April 1, 2011 | Tags: Shira A. Sheindlin, TRAC, wikicountability
It seems that the notions of open government and better administration of the Freedom of Information Act have attracted some new adherents in recent weeks.
For example, Crossroads GPS, the political action group put together by Karl Rove and which played a large part in last fall’s Republican gains in Congress, has launched a new website to track FOIA requests.
A Michigan libertarian group used the state’s FOI law to ask for emails from university professors in Michigan relating to the move in Wisconsin to reduce collective bargaining rights for public employees. And the Wisconsin Republican Party also requested email from a University of Wisconsin labor professor who has criticized Gov. Scott Walker.
In Washington, Rep. Darrell Issa, R-Calif., has used his position as chair of the House Committee on Government Oversight and Reform to put the spotlight on apparent meddling with FOIA requests by senior political officials in the Department of Homeland Security. In January he asked agencies to submit their FOIA logs to the committee, along with a list of other related information.
All this activity has made some traditional open government and FOIA advocates uneasy, at least in part because, frankly, they hold different political views.
Rove’s operation has provoked a lot of less-than-flattering blog posts and comments, such as this one from a New York Times story: “It is incredibly ironic that Crossroads wants to talk about openness when they are highly secretive,” said Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington. I think the whole thing is a gimmick. It is ridiculous coming from Rove.”
When Issa asked agencies to provide him with FOIA logs, which agencies must keep as part of their FOIA activities, Democrats in Congress asked him to reconsider the request, saying it would hamper other FOIA processing.
The Rove-backed site unquestionably has a political cast to it. Part of the site is dedicated to “Obama Administration FOIA Violations.”
Maybe the most heated controversy has been over the requests for professors’ emails. As a professor myself, I treasure academic freedom and know how fragile it can be, especially in a superheated political environment. I hope those who are making these requests understand they are walking a fine line.
But I can’t agree with the line of thinking that seems to say that conservatives have no business using FOIA because they haven’t aggressively asked Republican officials to be more transparent. And it is just as wrong to ask conservatives to justify why they want information from the government as it is to ask journalists and others to justify their requests. It is, after all, public information, which belongs as much to those I might disagree with as those with whom I might agree.
A new FOIA resource
David Burnham and Susan Long, who operate the Transactional Access Records Clearinghouse at Syracuse University, have introduced The FOIA Project, a new website to track FOIA-related lawsuits around the nation.
The project’s “ultimate goal …will be to shame those who violate the FOIA by creating a broad new kind of sanction: through systematic public exposure, eliminate the de facto secrecy that today cloaks from public censure those who engage in unlawful withholding.”
It’s a welcome addition to the FOIA monitoring community.
Following up
A few weeks ago we reported on a groundbreaking decision by a federal judge in New York that said agencies should release information in an electronic format, including metadata.
U.S. District Judge Shira A. Scheindlin ruled that the Immigration and Customs Enforcement Agency and other federal agencies had wrongly turned over information in unsearchable PDF files.
Judge Scheindlin, a Clinton appointee who is regarded as an expert on electronic discovery issues, looked at the issue not just in FOIA terms, but also in context of federal discovery rules, which permit the requester to specify a format to be used in providing documents. She said ICE’s disclosure was insufficient to meet obligations under both FOIA and discovery rules. Likewise, she found metadata was required under discovery rules and FOIA.
The Obama administration, unsurprisingly, is appealing that ruling in the Second U.S. Circuit Court of Appeals. Among other things, the appeal argues that the federal rules of discovery do “not govern the processing of FOIA requests.” Federal attorneys also dispute whether metadata is actually part of a record as defined by FOIA.
The government’s filing recognizes the potential importance of the district court decision, asking that the ICE and other agencies not be required to turn over documents until after the appeal because it is, “a decision with potentially sweeping consequences for FOIA practice throughout the country.”
