Monday, December 5, 2016

OPA FOIA Fail. Where's Holder When You Need Him?

It seems like ages ago when President Obama issued a presidential memorandum on FOIA that called on agencies to "usher in a new era of open government."  Federal agencies would have a presumption of disclosure and not simply withhold information because they could do so. Obama directed Attorney General Eric Holder to issue new FOIA guidelines reaffirming the government’s commitment to accountability and transparency. Said Holder:
"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner ... The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."
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The Editor of this blog confesses that he did not have all of this fanfare in mind 716 days ago, when he filed a FOIA request with the Office of the Pardon Attorney (Department of Justice), almost identical in form and content to at least a dozen others (in the administrations of both George W. Bush and Barack Obama - see figure to the right). But years passed (literally) and, eventually, the Office of the Pardon Attorney - in addition to not fulfilling FOIA requests - stopped acknowledging altogether that it was even receiving them.

So, the Editor contacted his U.S. Senator, Dick Durbin and asked for assistance. In a letter to Senator Dick Durbin, dated August 22, 2016, Executive Officer William N. Taylor II, explained that the Office of the Pardon Attorney (OPA) was just too busy for FOIA stuff. He said the OPA "has been unable to process many FOIA requests" or even so much as "respond" - at all - to "non-case related correspondence of any kind." Taylor condescendingly noted that he can "appreciate" an "inquiry" here and there, and the "desire for information." But he insisted that it was simply "impossible at this time" to respond to such requests. Mr. Taylor anticipated that, "at the end of the Administration," the Office of the Pardon Attorney will "once again begin processing pending FOIA requests."

Yes, he actually wrote that!

This past Thursday, Mr. Taylor contacted the Editor directly, via email, and announced the Office of the Pardon Attorney had actually used tax payer dollars to create a new "electronic case management system" that is such an improvement on 80s technology that information once easily accessible is now buried in the "system" and it "would be quite an expensive undertaking" if not futuristic "custom" development to fulfill FOIA requests that used to take 1-2 weeks at most to receive, acknowledge and fulfill. Moving those mountains is just not "something [Taylor] would be able to approve at this time."

That's progress! Is it no wonder that OPA has a problem obtaining funding.

You would think that would be the end of it. But, no, Taylor offered additional information that seemed like a much more plausible explanation for 716 days of nothing. He announced that, even if the OPA could muster the skill to retrieve once easily accessible information from the bowels of its new "system" ... there would still need to be "some discussion with all of the stakeholders involved in the executive clemency process to see if they all would approve of having that information public." That is to say, as President Obama charges into the greatest last-minute clemency surge in history, the OPA is, now, very much, not operating under a presumption of disclosure.

Never thought we would say it ... but ... we sure miss Eric Holder ... George W. Bush ... and the old Barack Obama, for that matter! This awkward policy change must be part of the mysterious "revamp" we all heard about years back. We thought our right to records (including electronic records) was determined by the FOIA, not whether OPA “approves” of making info public.

1 comment:

Anonymous said...

Sue them. FOIA provides attorneys fees and costs for prevailing plaintiffs. It is also a little more user friendly than most litigation against the government, in that it provides a shorter period for the government to answer the complaint (30 days, instead of the usual 60), and almost all FOIA actions are decided on the pleadings without having to go to the trouble of discovery and trial. You have the choice of suing them in DC or in the district where you reside. Clearly, in this case, the agency has exceeded the 20-day deadline in 552(a)(6). Sounds like they got nothing. Take them to court.

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