Monthly Archives: May 2013

Freedom Of Information Law Ignored by White House

SEVERAL SCANDALS, SAME PROBLEM

The White House has lately been racked with increasingly serious scandals, including those involving the attack on the American outpost in Benghazi, the wiretapping of reporters, and the use of the Internal Revenue Service to discourage the activities of organizations perceived to differ in their views from the President.

The common thread uniting each of these three diverse issues is the refusal or failure by the Executive Branch to provide appropriate information to the public, in apparent contradiction to the requirements of a law passed in 1966 which became effective one year later.

THE FREEDOM OF INFORMATION ACT

Since July of 1967, the Freedom of Information Act (FOIA)
United States Code Section 552 of Title 5 provides Americans with the court-enforceable right to access federal agency records, with limited exemptions. FOIA also requires that agencies automatically disclose certain information, including frequently requested records. The law mandates that federal agencies comply with information requests within 20 working days.

According to the official federal FOIA site, the Executive Branch, led by the President, is responsible for the administration of the FOIA across the government. The Department of Justice’s Office of Information Policy oversees agency compliance with these directives and it is supposed to encourage all agencies to fully comply with both the letter and the spirit of the law.

In 2007, the law was enhanced by the passage of the “Open Government Act.”
The Act is intended “To promote accessibility, accountability, openness in Government by strengthening section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), and for other purposes.” The Act is also referred to as the Freedom of Information Reform Act of 2007.

According to Sourcewatch, the bill, signed by President Bush, “contains more than a dozen substantive provisions designed to achieve the following four objectives: Strengthen FOIA and close loopholes; Help FOIA requestors obtain timely responses to their requests; Ensure that agencies have strong incentives to act on FOIA requests in a timely fashion; Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible.”

PRESIDENT OBAMA’S COMPLIANCE RECORD

As practiced by the Obama Administration, the intentions of the framers of the FOIA law have not been met. In fact, even getting federal agencies to disclose their policy about FOIA compliance has been problematical, according to a National Security Archives study reported in the Washington Free Beacon:

“FOIA regulations for federal agencies were hard to find, inconsistently located, and in some cases apparently non-existent…we ended up having to send 18 FOIA requests to agencies just to try and get their FOIA regulations” said Tom Blanton, director of the National Security Archives. “Surprisingly, we got a couple of ‘no responsive documents’ denials.”

Many observers, including both those who oppose the current White House as well as those who ardently support it, have explicitly pointed out that President Obama’s administration has acted in defiance of the law.

James Goodale is an ardent supporter of President Obama. He is the leading First Amendment lawyer and former Chief Counsel for the New York Times, well known for representing that news organization in the Pentagon Papers Trials during the Nixon administration. During a recent interview on the Vernuccio/Allison Report radio program, he compared Obama’s record with former President Nixon’s, and noted that Obama’s record is worse.

Washington lawyer Katherine Meyer, who has been filing FOIA cases since 1978, told Politico that:

“Obama is the sixth administration that’s been in office since I’ve been doing freedom of information work…it’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst.” The article notes that the White House “aggressively fights FOIA requests on the agency level and in court-sometimes at Obama’s direct orders…the administration has embarked on an unprecedented wave of prosecutions of whistleblowers and alleged leakers…federal agencies are also throwing up new hurdles…Open government advocates cringed when a Justice Department lawyer told the Supreme Court… [that the Justice Department] disagrees with decades of court rulings that exceptions to FOIA should be ‘narrowly construed.’

J. Christian Adams , who served for half a decade as an attorney in the voting rights section of the U.S. Justice Department protecting the rights of minority voters, has also expressed dismay at the Obama Administration’s lack of compliance with FOIA. In his recent book, “Injustice,” he notes that: “The DOJ’s [Department of Justice] politicization under Obama and its collusion with leftwing activist groups is also evident in the department’s handling of Freedom of Information (FOIA) requests.”

The Cause of Action organization reports that the Obama Administration habitually refuses to disclose even routine information.

Senator John Cornyn (R-Texas) has noted that nearly two thirds of the Obama Administration’s agencies are failing to comply with FOIA laws.

According to the FOIA Project Obama’s record compares quite unfavorably to that of his predecessor, and that under Eric Holder, “the Justice Department continues to defend whatever information…agencies chose to withhold.”

The Associated Press has reported that during the Obama Administration, 17 major agencies were 50% more likely to deny FOIA requests than under Bush.

Watchdog.org reports that under President Obama, the administration has rejected a third of all FOIA requests.

Nearly half of all requests made by the Bloomberg news agency were never answered. Bloomberg also reports that 19 out of 20 cabinet level agencies failed to comply with requests regarding travel expenses, and only 8 out of 57 responded in a manner consistent with the law.

T he Washington Post has reported that FOIA requests completely denied by the federal government using the excuse of “exemptions” under the law rose more than 10 percent last year, to 25, 636 from 22,834 the previous year.

There have also been reports that evasive maneuvers were engaged in by the White House to avoid establishing records that would be discoverable under FOIA.

In the IRS matter, for example, Jeffrey Lord reports in the American Spectator
that the day before targeting of Tea Party groups began, on March 31, 2010, President Obama met personally with the head of the Treasury Workers Union, Colleen Kelley, who was known to be most vociferous in her views against those organizations.

Similarly, it has been known that Obama officials have held “informal” meetings outside the White House in local eateries in an attempt to evade establishing any evidence of the meetings or records of the issues discussed.

POLITICAL BIAS IN RESPONSE
TO FOIA REQUESTS

In addition to the general lack of compliance with FOIA, government agencies have discriminated against those with philosophies differing from the White House.

The Competitive Enterprise Institute (CEI) has released a study detailing one example:

“Public records produced by EPA in response to a lawsuit filed by CEI under the Freedom of Information Act illustrate a pattern of making it far more difficult for limited-government groups – in particular those who argue for more freedom and less EPA – to access public records.

“Such groups are precisely those Congress and courts made clear FOIA was intended to protect from fees being used as a hurdle to obtaining information, without prejudice as to their perspective. Worse, CEI has now obtained proof of the spectacularly disparate nature of the practice, specifically revealing extraordinarily favorable treatment of the same green groups it’s been shown to be collaborating with on its agenda… In a review of letters granting or denying fee waivers granted at the “initial determination” stage from January 2012 to this Spring, Horner found green groups, such as the Natural Resources Defense Council, Sierra Club, Public Employees for Environmental Responsibility and EarthJustice, had their fees waived in 75 out of 82 cases. Meanwhile, EPA effectively or expressly denied Horner’s request for fee waivers in 14 of 15 FOIA requests over this same time.

“Moreover, every denial Horner appealed was overturned. “That these denials are ritually overturned on appeal, not after I presented any new evidence or made any new point, but simply restated what was a detailed and heavily sourced legal document to begin with, reaffirms the illegitimacy of these hurdles EPA places in the way of those who cause it problems.” Horner said. “EPA’s practice is to take care of its friends and impose ridiculous obstacles to deny problematic parties’ requests for information.”

“The numbers for a sampling of comparable “national” groups are mind-boggling. Of Sierra Club’s 15 requests, EPA granted 11. And Sierra Club received the harshest of treatments. In fact, EPA granted 19 of NRDC’s 20 requests and 17 of EarthJustice’s 19 requests. Public Employees for Environmental Responsibility went a perfect 17-for-17. The Waterkeeper Alliance had all three of its requests granted, Greenpeace and the Southern Environmental Law Center each were 2-for-2, the Center for Biological Diversity 4-for-4…”

Judicial Watch, the public interest group that investigates and prosecutes government corruption, experienced a similar roadblock in 2011. The organization had filed FOIA requests with the Department of Homeland Security (DHS) concerning that agency’s “stealth amnesty” program. When DHS failed to comply, Judicial Watch sued and won.

FUTURE CHALLENGES

That decision, issued by the United States District Court for the District of Columbia (Judge Colleen Kollar-Kotelly) may serve as a precedent that will eventually mean the release of information vital to uncovering the actual, and potentially explosive, facts behind the Benghazi, IRS, and reporter-tapping scandals.

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On This Memorial Day,
we remember with gratitude all those
who gave their lives
in the defense of freedom

Was the 2013 election valid?

Was the 2012 election valid? The stunning question is disturbing and the potential results are unsettling.

The sum total of the alleged numerous unlawful acts performed by or on behalf of President Obama, his administration and his campaign cumulatively and individually give rise to almost unthinkable issues. These problems involve an entire pattern of potential cover-ups, voter intimidation, electoral abuses and unresolved matters from the 2008 campaign, combined with questions of vote tabulation.

Among the issues in question:

If the facts of the Benghazi disaster swere not covered up, would voters have chosen differently?

What was the net effect of the intimidation of conservative groups by the Internal Revenue Service?

How many inaccurate or flagrantly fraudulent voters registered by ACORN or others cast ballots?

What was the effect of the Justice Department’s refusal to prosecute clear cases of voter intimidation by Obama supporters in the 2008 election?

What benefit did the Obama campaign reap from the use of the Stimulus program to reward 2008 campaign contributors?

Did the Obama campaign use contact information from the massive increase in individuals receiving federal benefits?

What effect did the failure to timely send military ballots have on votes cast by service members?

What effect did the use of a foreign company to tabulate the votes in 525 jurisdictions in 26 states have on the election results?

In a number of jurisdictions, more votes were cast than registered voters. What effect does the failure to prosecute this matter have on the election results?

In a number of precincts, Mitt Romney received no votes at all What effect did this apparent error have on the overall election results?

Each of these issues deserves a more thorough investigation by an independent, bipartisan commission. The overarching question is whether in sum total, they would have changed the results of the 2012 election. If the answer to that is yes, constitutional scholars, and eventually the United States Supreme Court, will have to decide how to navigate this unchartered territory.