Washington, DC – A coalition of transparency advocates today urged a federal court to reject a new effort by the Trump administration to block public access to government documents.
The Department of Justice (DOJ) has asked a judge for permission to delay responding to a Freedom of Information Act (FOIA) request filed by watchdog Democracy Forward Foundation, claiming it does not have the resources to process the department’s growing backlog of outstanding document requests.
A coalition of organizations—American Oversight, Citizens for Responsibility and Ethics in Washington (CREW), National Security Counselors (NSC), Open The Government, Project On Government Oversight (POGO), Public Citizen, and the Sunlight Foundation—filed an amicus brief in support of Democracy Forward’s opposition to the delay, arguing that the government has more than enough resources to comply with FOIA’s statutory deadlines and should not be allowed to rely on its failure to process past requests as an excuse for further delays.
“Courts should not buy into the Department of Justice’s effort to shut down transparency on the ridiculous ground that its long history of deliberately failing to address its FOIA backlog justifies even more delays,” said Austin Evers, Executive Director of American Oversight. “At a time when Americans are increasingly concerned about the state of our democracy, the government cannot be permitted to operate in secret. Rather than throwing in the towel, DOJ should devote the resources required to comply with the law and provide Americans the information to which they are entitled.”
“The Freedom of Information Act lies at the heart of government transparency,” said Anne Weismann, CREW’s Chief FOIA Counsel. “By delaying the release of records, the Department of Justice would be effectively preventing Americans from knowing how their government functions at a time when there is a particular focus on the DOJ.”
“Agencies have often asked judges piecemeal for lengthy stays in individual FOIA cases, citing only their workload, but now the government has begun asking across the board for stays in large swaths of cases, still without doing anything to actually improve their productivity. Courts cannot continue to tacitly endorse this systematic refusal to increase FOIA workforce and spending to keep pace with the growing public demand for government information, which shows no sign of decreasing,” said Kel McClanahan, NSC Executive Director.
“FOIA is the premier tool used by journalists, advocates, and the general public to combat government secrecy and ensure accountability. There are policy issues that the public has an urgent need to know about, and we can’t afford to allow agencies to ignore their legal obligations and refuse to respond to FOIA requests in a timely manner. Agencies must fully comply with FOIA to protect the public’s right to know,” said Lisa Rosenberg, Executive Director of Open the Government.
“Congress meant for FOIA to be an effective tool for granting timely public access to government information; however, the experiences of FOIA requesters continue to highlight agency noncompliance with the law. Allowing the government to ignore requesters in favor of moving through backlogs, in part created by its own lack of action, punishes the public for the government’s foot dragging and cannot continue,” said Liz Hempowicz, POGO’s Director of Public Policy.
“The law requires agencies to respond promptly to FOIA requests. As agencies continue to disregard their FOIA obligations and allow backlogs to increase, courts must be vigilant in enforcing the prompt disclosure of records and not permit agencies to further delay responding,” said Patrick Llewellyn, attorney at Public Citizen Litigation Group.
At issue is a move by the DOJ to seek an “Open America stay” in response to a FOIA lawsuit brought by the Democracy Forward Foundation over the release of records involving various appellate court nominees.
In narrowly-defined “exceptional circumstances,” a court can issue a stay allowing an agency to delay processing a FOIA request. The burden for obtaining such a stay is high, however, and Congress has clarified that the definition of exceptional circumstances does not include backlogs from a predictable agency workload of FOIA requests.
As the groups note in the amicus brief, DOJ’s FOIA backlog was entirely predictable. It has been building for a decade as a result of the department’s own failure to process requests in a timely manner as required by the law. In seven out of the past ten years, DOJ’s FOIA backlog has increased by double-digit percentages while the department has elected not to hire additional staff to meet the demand.
The brief also argues that some of the recent influx of FOIA requests is due to moves by the Trump administration to restrict access to information that had previously been publicly available. Documents such as cabinet officials’ schedules have been removed from agency websites, and in multiple cases, agencies have told reporters to file FOIA requests to obtain copies of public remarks delivered by senior officials.
DOJ has demonstrated it can allocate resources to review documents when motivated. On July 11, 2018, the New York Times reported that Deputy Attorney General Rod Rosenstein had asked each United States Attorney’s Office to make three attorneys available – more than 280 in total – to review documents related to the nomination of Judge Brett Kavanaugh to serve on the Supreme Court.