Senators look for answers on FOIA reform, Clinton emails

Legislation can accomplish only so much when up against "an instinct of secrecy," says Sen. Chuck Grassley.

Shutterstock image: government access keyboard.

A bipartisan group of senators is looking to jumpstart open government legislation that flagged in the waning days of the last Congress. The FOIA Improvement Act of 2015 would expand the proactive disclosure of government documents, waive fees for Freedom of Information Act requesters who are not served on deadline, and require the government to set up a one-stop online portal for filing requests to government agencies, rather than the current piecemeal approach.

Three of its key backers -- sponsor  John Cornyn (R-Texas), Chuck Grassley (R-Iowa), and Patrick Leahy (D-Vt.) -- checked in with key FOIA enforcers at a hearing of the Senate Judiciary Committee to find out how the administration was doing in complying with existing FOIA requests.

"But legislative reforms can only go so far," Grassley said at the hearing. "Experience shows that many in government continue to operate with an instinct of secrecy. This has been the case under Democrat and Republican administrations, as both have failed to live up to the letter and spirit of FOIA."

Government witnesses pointed to an increase in FOIA requests and a shrinking workforce. In fiscal 2014, the most recent year on which data is available, 3,838 full time staff worked on FOIA across government, the lowest number in six years, according to a report from the Justice Department Office of Information Policy. Melanie Ann Pustay, who heads OIP, told the committee that workforce challenges and a "record high number of incoming requests" led to a rise in the backlog of unfulfilled requests.

According to data from the report, the unanswered request backlog grew 55 percent between from 2013 to 2014. Additionally, reversals on FOIA appeals reached their highest level in five years.

Concurring with Grassley, Karen Kaiser, general counsel at the Associated Press, said the slowly grinding gears of FOIA requests have more to do with culture than policy.

"The reflex of most agencies is to withhold information, not to release, and often there is no recourse for a requester other than pursuing costly litigation. This is a broken system that needs reform. Simply stated, government agencies should not be able to avoid the transparency requirements of the law in such continuing and brazen ways," she said.

Kaiser also strongly backed the provision in the bill to build a single online portal for requesters. "Such a system would help agencies better monitor and manage their FOIA responses, allocate resources, and communicate with other agencies as needed. It would vastly improve the use of limited agency resources and would free up FOIA officers to respond to substantive requests in a timely manner," she said.

Clinton emails

The AP is currently pursuing a FOIA lawsuit against the State Department for access to former Secretary Hillary Clinton's emails.

The State Department's top FOIA officer, Assistant Secretary for Administration Joyce Barr, was at the hearing, ostensibly to discuss State's lagging FOIA response record. However, some senators were more interested in the Clinton emails.

Despite persistent questioning from Cornyn, there were no new disclosures about how the department dealt with Clinton's now-notorious private email server for the purposes of FOIA processing. Barr said it was "not acceptable" practice under current rules for agency employees to use a private email system for government business.

"I think that the actions that we've taken in the course of recovering these emails have made it very clear what people's responsibilities are with regard to record-keeping. We continue to do training, we've sent department notices, telegrams, we've talked to directors and I think the message is loud and clear that that is not acceptable," Barr said. A 2014 update to the Federal Records Act put new restrictions on government use of private or personal email systems and accounts, but it was not in place when Clinton served as secretary.

Regardless of the letter of the law, Thomas Blanton, who heads the National Security Archive at George Washington University, said it was "wrong" for Clinton to circumvent agency systems.

"It's wrong because in this specific instance you had the head of a federal agency doing it who is responsible under the Federal Records Act for records systems that preserve agency records," Blanton said. Nonetheless, Blanton noted that given the records management practices at the Department of State and across government, it's possible that Clinton did archivists an unintentional favor.

"We're probably going to end up with more preserved emails from those materials handed over by Ms. Clinton because she had them on a private server, than if she had kept them all on a State.gov system, because the State.gov system was totally broken, and that is a tragedy. That is a commentary on recordkeeping and something we've got to change," Blanton said.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.