The Trump administration is regularly accused (occasionally by us) of being the least-transparent presidential administration in recent history. There is ample justification for this charge: from refusing to release White House visitor logs to ending the practice of sharing cabinet officials’ schedules, this administration – from the top down – has sent a clear message that it neither wants nor values public transparency.
One of the consequences of this obstructionism has been a sharp increase in the number of Freedom of Information Act (FOIA) requests and lawsuits filed against cabinet agencies over the past 14 months.
Strikingly, federal agencies cite this increase to justify their failure to promptly release public documents. They argue they are overwhelmed by more information requests than they can handle. This is bogus. While the FOIA offices of agencies may feel overwhelmed (no doubt in part because of voluntary budget and staffing cuts), on the whole agencies have rarely faced less transparency pressure than they do right now.
And setting aside the absurd notion that increased public interest should necessarily translate into decreased public access, the rising FOIA and litigation backlog is actually a sign of a much more serious problem: the breakdown of our system of checks and balances.
When most of us think of checks and balances, we think of Congress acting as the primary check upon the executive branch. From Iran-Contra to the Clinton impeachment to the Benghazi committee, we generally have come to expect that – whether right or wrong – Congress will use its oversight authority and subpoena power to investigate cases where it believes an administration has stepped out of line.
That is no longer the case. Since the start of the Trump presidency, Congress by and large has abdicated its duty to check the administration. The first chairman of the House Oversight Committee, Jason Chaffetz, decided to quit Congress after just a few months rather than scrutinize the Trump administration, and his replacement—Trey Gowdy—has announced he will not seek reelection. Of course, their literal abdication pales in comparison to the actions of the House Intelligence Committee, which Chairman Devin Nunes has transformed from a check on the administration into a political propaganda arm of the White House.
This is where the FOIA and litigation backlog comes in. With the legislative branch sitting on the sidelines, the American people have taken oversight into their own hands, using the FOIA to correct for congressional inaction. And citizens are backed by the third branch of government: the courts. The FOIA allows members of the public to request information from the administration and, if agencies fail to comply with the law, we the people can take our government to court to enforce our rights.
The situation at the Environmental Protection Agency (EPA) under Administrator Scott Pruitt presents a good example. In 2017, the EPA received nearly a thousand more FOIA requests and over three times as many lawsuits as the year before. Why is that?
Some of these new FOIAs and lawsuits can be attributed to the intense culture of secrecy at the EPA under Pruitt. An analysis by the Project on Government Oversight found that, while the rest of the agency closed approximately 79% of the FOIA requests it received in 2017, Pruitt’s personal office closed only around 17%. Some of the requests (and litigation) sought information that prior administrations routinely released to the public without a fight, such as calendars. After getting stonewalled, American Oversight filed a FOIA request to obtain Pruitt’s calendars covering his first several months in office, and after the EPA refused to respond, we sued and forced the agency to release the calendars for everyone to see. The results demonstrated why he sought to hide them: wholesale regulatory capture by polluters and industry lobbyists.
Other FOIAs fit squarely into the category of “oversight work that Congress should be doing.” After news reports revealed that Pruitt had spent tens of thousands of dollars installing a soundproofed phone booth and biometric locks in his EPA office, we sued the agency to obtain the records of all of his office renovation expenditures. Under normal circumstances, one might think that the congressional committees overseeing the EPA’s budget would take issue with this kind of wasteful spending, but instead, it was up to the public – and the courts – to uncover the facts and hold the EPA accountable.
The situation is the same all across the Trump administration. At agency after agency, reports of lies, waste, misconduct, and outright corruption are being met by indifference from Congress. But one thing that makes America great is that our principles of self-government include tools for self-oversight. People are fighting back and using the courts to keep the executive in check.
Of course, this isn’t a viable long-term solution. Our government works best when all three branches are serving as active checks and balances on one another. As Federalist No 51 noted: “In order to lay a due foundation for that separate and distinct exercise of the different powers of government… it is evident that each department should have a will of its own.”
Right now, Congress is not behaving as though it has a will of its own – and until that changes, or until the Trump administration becomes more transparent and ethical, the FOIA requests and lawsuits are going to continue.