Obama Administration Distorted Its Transparency Record: Ex-DOJ Official

After taking heat from good government groups for its lack of progress on transparency, the Obama administration distorted its record on processing Freedom of Information Act requests, a former Justice Department official says. Despite talk early on in his administration that he would make FOIA requests easier to file and government agencies more responsive, proponents of open government have said that Obama has done the opposite. So, it was particularly rankling to see a press release boasting, "Department of Justice Increases FOIA Releases and Reduces FOIA Backlogs." Among those who think the opposite is true, is Dan Metcalfe, a founding director of the Justice Department's Office of Information and Privacy, who guided the federal government's FOIA practices for more than 25 years. He says the government's numbers do not add up.

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"The department's most recent backlog reduction claim appears to be grossly wrong," Metcalfe told The Atlantic Wire.  

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The scrutiny comes ahead of Attorney General Eric Holder's address at the Justice Department Monday, where he's expected to laud the Obama administration's achievements on FOIA-related issues. 

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While previous administrations have come under fire for failing to be transparent, the Obama administration has faced particularly disappointed advocates because he came into office promising to open government records. In the very first minute of Obama's presidecy, the White House promised to be "the most open and transparent in history." The next day he signed a memorandum ordering, "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA." At the signing ceremony, he said, "The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law."

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While open government activists may have been pleased with such lofty goals, they have been disappointed by the administrations practices in the last three years. In February, a group of national security researchers filed a class-action lawsuit against the CIA, accusing it of illegally discouraging requests by imposing heavy fees without ever giving cost estimates. Around the same time, the ACLU and the Electronic Frontier Foundation assailed the Department of Homeland Security for imposing "exorbitant fees" in the thousands of dollars. In March, Politico's Josh Gerstein ticked off a slew of grievances noting that "Administration lawyers are aggressively fighting FOIA requests at the agency level and in court—sometimes on Obama's direct order. They've also wielded anti-transparency arguments even bolder than those asserted by the Bush administration." On Valentine's Day, the National Security Archive, based at George Washington University, gave the Justice Department the infamous Rose Mary Woods Award for "worst open government performance."

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At issue in the Department of Justice's claims for its FOIA performance in 2011 is the claim that it has significantly worked down its FOIA backlog—one of the key ways officials can empirically cite progress on transparency. "The Department of Justice continues to lead by example in its administration of the FOIA," stated the release. "The backlog for initial requests was reduced significantly, by a full 26 percent."

Metcalfe, taking aim at his former employer, said the 26 percent reduction claim is suspect and certainly isn't indicative of the department's transparency record as a whole. 

Citing the DoJ's own annual reports, Metcalfe said "When you examine the reported numbers, you realize that Justice had an aggregate pending request decrease of only 4.5 percent over the past two years, including an actual backlog increase from 2009 to 2010." He added that this makes the department a poor model for the Obama administration's Open Government Directive, mandating 10 percent reduction of FOIA backlogs each year. 

So how come Metcalfe cites a 4.5 percent reduction while the Justice Department says it's 26 percent? According to Justice, that's because it has two ways to describe its stockpile of unanswered FOIA requests. One of them is "backlog," which it used in the chart at right. The other term is "pending requests," which Metcalfe cites. For every annual report, the "backlog" is typically smaller than the "pending requests" because it doesn't include FOIA requests that came in within the last 20 business days, which is the statutory deadline agencies have to respond to initial requests.

However, in 2011, the almost 50 percent discrepancy between the claimed "backlog" (3,816) and the "pending requests" (6,897) was unusually large— causing Metcalfe and other FOIA experts to scratch their heads. 

"I can't believe there would be such a significant difference," said David Sobel, senior counsel at the Electronic Frontier Foundation, who's been litigating FOIA requests for 30 years. "A few weeks' worth of requests? I don't see how that translates."

"It's suspicious that there are seemingly 3,000 un-responded requests," said Nate Jones at the National Security Archive. "Unless the department was suddenly besieged with 'unbacklogged' requests at the end of the fiscal year, it doesn't add up," added Metcalfe.

Justice spokeswoman Gina Talamona attributed the reduction to two factors. "This year we processed to completion 889 more requests than came in," she said. "Also, the department focused on closing its oldest requests as part of its backlog reduction efforts." 

Metcalfe, who teaches government secrecy law at American University, countered Talamona's first point, saying even with its completion record, the backlog discrepancy is too great. "Backlogged' requests on hand are, by definition, a percentage of 'pending' requests that naturally does not vary much from year to year," he said. 

The Justice Department answered back, noting that in 2010, only 68.5 percent of pending requests were counted as backlogged. 

Metcalfe maintained the 2011 backlog disparity was still significantly greater than in 2010 and rejected Talamona's second point. "As for the suggestion that the processing of ‘older’ requests makes any difference here, that’s bogus -- a request is a request no matter what its age once the agency’s response is overdue.” Justice did not respond to a further inquiry into how it tallies its FOIA backlogs. 

Metcalfe said his disappointment about his former department goes beyond its latest press release. He also cited a 35 percent backlog increase at Justice's top three leadership office from fiscal year 2010 to 2011, as well as outward statements about significant improvements. "For it to falsely claim that it ‘continues to lead by example’ has now become sad to the point of being pathetic, as is the notion that it is doing more today than ever in the past to promote FOIA disclosure.”