Chaffetz plans to modernize FOIA law to hold agencies more accountable

House lawmakers are spending the week trying to figure out why the government’s ability to release information publicly has gotten worse over the last 20 years.

Rep. Jason Chaffetz (R-Utah), the chairman of the Oversight and Government Reform Committee, is holding two hearings this week on the implementation of the Freedom of Information Act (FOIA) with a goal of better understanding why agencies find it so difficult to consistently meet the spirit and intent of the law.

He said every administration comes in saying they want to be open and transparent, but soon they find out it’s easier and better politically to be closed and opaque.

“I worry over the course of several administrations and certainly this administration, the stiff arm that has been given to the media that has been given to the public has become excessive,” Chaffetz said Tuesday at an event hosted by the National Journal in Washington. “In this administration, there are more than 550,000 times that the administration has claimed some sort of exemption and not let that information out. In fact, less than 30 percent of the time that somebody submits a FOIA request do they actually get information back — a full and complete accounting for what they asked for. Less than 30 percent, that’s just not who we are as a people.”

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At Tuesday’s hearing that included members of the media and good government groups, Chaffetz said two White House memos send conflicting messages to the agencies.

First, he said a January 2009 memo said agencies should consider disclosure before anything else. But three months later, Chaffetz said, the administration issued a memo directing agencies to consult with the White House with respect to all types of document requests.

“This is the heart of the backlog. The heart of the backlog lies in this memo. We have to clarify the President of the United States less than four months after he’s been in office to say, ‘No, no, no, don’t fulfill the FOIA request, send it here to the White House. We have equities, the White House equities,'” he said. “You want to see the bottleneck, look at the White House. If there is further clarification, let’s see it. But right now there is a three paragraph memo and it’s crystal clear, ‘folks don’t you dare fulfill that FOIA request.’ This doesn’t say comply with the law. Does anywhere in FOIA say that the White House general counsel’s office should review FOIA requests before it’s given to the public or the media? No. It does say the need to consult with the White House for all document requests, included in there is FOIA.”

Backlog increases by 55 percent

Chaffetz said this memo is wrong and has a “chilling effect” that slows down the process.

“The message from the White House should be ‘open it up. What are we afraid of? It was the Bush administration that did all that,'” he said. “Why couldn’t we have done what the President had asked for on day one of his administration?”

And the backlog grew by 55 percent in fiscal 2014 to 714,231, while the workforce handing FOIA requests is the smallest in five years, according to an analysis by the Associated press.

Several of the agencies will have the opportunity on Wednesday to explain to Chaffetz and the committee why the backlog has grown.

The chief FOIA officers from the departments of State, Justice, Homeland Security and Treasury and from the IRS will testify about the challenges they face in meeting FOIA requests.

A big part of the FOIA problem, Chaffetz said, is the over-classification of documents.

He said too often the rationale for classifying or redacting information is suspect.

Chaffetz said many times when he’s seen the redacted and unredacted versions of documents, the difference isn’t national security related, but more because someone could have been embarrassed.

Chaffetz said he believes FOIA reform could happen during this Congress.

“There needs to be teeth in this. We do it in a bi-partisan way. We show there are consequences for not fulfilling, maybe limit back the number of exemptions because that’s become the excuse every administration has taken, and give them more solidified dates and times when they actually have to fulfill these FOIA requests,” he said. “They also are collecting millions of dollars from the public. The worse one I heard was a $90,000 bill to fulfill the FOIA request. We have to talk about that money. It’s a very small percentage, but it inhibits a lot of people from actually doing what the government ought to be doing for them anyway.”

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