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Department of Justice Accused of Undermining FOIA Ombudsman
(Image: Jared Rodriguez / Truthout)

Department of Justice Accused of Undermining FOIA Ombudsman

(Image: Jared Rodriguez / Truthout)

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The Obama administration continues to disseminate a flawed narrative about President Obama’s commitment to open government. Just last week, White House spokesman Jay Carney told reporters during a press briefing that President Obama has taken steps, “unprecedented in American presidential administration history,” to “enhance transparency.”

But Carney’s rhetoric is not supported by the facts, as has been documented time and again over the past three years.

Indeed, one veteran Freedom of Information Act (FOIA) requester said, “there’s no question about it,” the Obama administration is “the worst on FOIA issues.”

“This administration is raising one barrier after another…. It’s gotten to the point where I’m stunned – I’m really stunned,” Washington lawyer Katherine Meyer told Politico earlier this year.

The government agency largely responsible for thwarting the administration’s transparency promises is the Justice Department’s (DOJ) Office of Information Policy (OIP), which is supposed to ensure all federal agencies comply with the executive order on open government Obama signed immediately after he was sworn into office and the new FOIA guidelines Attorney General Eric Holder issued shortly thereafter.

Instead, “OIP has introduced FOIA regulations that would have allowed lying to requesters, excluded online media from news media fee waivers, made it easier for the DOJ to capriciously deny requests and begun charging students for making FOIA requests,” said Nate Jones of George Washington University’s National Security Archive, a historical research group that files thousands of FOIA requests and publishes declassified documents, in an interview with Truthout. “In its FY 2011 FOIA report, OIP cooked its FOIA stats to present a laughably high 95.4 percent FOIA release rate. (The actual release rate was closer to 56.7 percent.)”

“In March 2009, Holder pledged that the DOJ would only defend FOIA agencies’ FOIA denials when true harm would occur from the release of documents,” Jones added. “There is not a single known case of the DOJ refusing to defend any agency FOIA decision.” (Emphasis added by Jones.)

Further demonstrating its disdain for transparency, OIP, for the past several months, has apparently been trying to sideline the independent Office of Government Information Services (OGIS) and the agency’s FOIA ombudsman, set up in 2007 through bipartisan legislation. OIP is headed by Melanie Pustay, who was appointed director in 2007 by former Attorney General Alberto Gonzales.

OGIS, housed at the National Archives and Records Administration (NARA), according to its web site, “works with executive branch agencies and requesters to promote compliance with the FOIA.” It’s responsibilities include:

  • Reviewing agencies’ FOIA policies and procedures;
  • Reviewing agency compliance with the FOIA;
  • Recommending to Congress and the President ways to improve the FOIA;
  • Providing facilitation and mediation services to FOIA requesters and agencies to resolve disputes; and
  • Issuing advisory opinions, at the Office’s discretion, when mediation does not resolve disputes.

Open government experts and advocates have long suspected tension between OIP and the FOIA ombudsman, largely due to the fact that the ombudsman is supposed to demonstrate true independence when disputes arise between the government and FOIA requesters over denial of records.

In March, the DOJ tried to muscle in on the ombudsman’s turf by publishing a notice in the federal register describing an ombudsman program run by OIP, to handle “disputes between federal agencies and individuals who submit requests under” FOIA, that would have conflicted with the work performed by OGIS as FOIA ombudsman.

DOJ’s proposal prompted Sens. Patrick Leahy (D-Vermont) and John Cornyn (R-Texas), the lawmakers who sponsored the 2007 Open Government Act that led to the creation of the FOIA ombudsman, to send a strongly worded letter to Holder stating, “DOJ’s proposal is inconsistent with the plain language of [the Open Government Act] and with our intent.”

Suzanne Dershowitz, in a report published in March on the web site of the Project On Government Oversight (POGO), noted the DOJ has tried once before to interfere with the FOIA ombudsman’s duties:

Just weeks after the enactment of the FOIA reform legislation of 2007, President Bush buried a provision in the administration’s fiscal year 2009 budget proposal that would have moved the functions of newly created OGIS from independent NARA to DOJ. When the Bush Administration attempted to defund OGIS at NARA and instead set up the ombudsman role within DOJ, Congress deflected the effort. As Sen. Leahy argued in a 2008 statement, it was important to install the ombudsman outside DOJ:

When Senator Cornyn and I drafted the OPEN Government Act, we intentionally placed this critical office in the National Archives, so that OGIS would be free from the influence of the Federal agency that litigates FOIA disputes – the Department of Justice.

Now, Leahy and Cornyn are being urged to hold hearings to again clarify their intent in light of a recent court filing pertaining to a FOIA lawsuit in which the DOJ mischaracterized and undermined OGIS’ responsibilities as FOIA ombudsman.

Kel McClanahan, the executive director of Arlington, Virginia-based public interest law firm National Security Counselors, has been litigating against the CIA since February a fee dispute where the CIA refused to process FOIA requests without a commitment by the requester to pay all fees. (Full disclosure: McClanahan is representing this reporter in a FOIA lawsuit filed against the CIA, FBI, and other government agencies, in which National Security Counselors is also a plaintiff.)

Before suing the CIA, McClanahan worked closely with the FOIA ombudsman over the course of several months to resolve the case. The ombudsman’s office engaged in a half-dozen discussions with the CIA and OIP alerting the agencies to some discrepancies under the law associated with its demand that requesters commit to paying all fees before the agency begins to process FOIA requests, according to a May 9 letter sent to McClanahan by OGIS Director Miriam Nisbet.

“As you know, non-commercial [FOIA] requesters are statutorily entitled to two free hours of search time and 100 free pages of duplication regardless of whether they commit to paying fees and regardless of whether the remainder of any responsive records is processed,” Nisbet wrote.

The CIA and DOJ, however, refused to budge, claiming its demand that requesters commit to paying all fees is perfectly legal. In a June 1 court filing, the DOJ said the ombudsman’s “opinion is incorrect and unsupported.”

Moreover, the government contended that the FOIA ombudsman “offers mediation services and does not set government policy,” a statement contradicted by the language contained in Leahy and Cornyn’s Open Government Act and a description of the ombudsman’s responsibilities posted on its web site.

The government’s position led McClanahan to write to lawmakers requesting they initiate hearings, “or at the very least communicate such intent to the Attorney General in official correspondence in such a way that emphasizes that these continuing attempts to erode OGIS’ role within the Executive Branch will no longer be tolerated.”

In an interview, McClanahan said the government’s response “clearly shows … the true feelings DOJ harbors for [the ombudsman], the ‘new kid’ who should stick to mediation and not get involved in such ‘adult’ matters as analyzing FOIA policy.”

“The fact that one federal agency would go on record and ask a federal judge to endorse such an opinion about another federal agency speaks volumes about the disdain that DOJ apparently holds for its sister agency,” McClanahan said.

In his letter, a copy of which was also sent to Reps. Darrell Issa (R-California) and Elijah Cummings (D-Maryland), chairman and ranking member on the House Committee on Oversight and Government Reform, McClanahan said the FOIA ombudsman did not “reach this conclusion on a whim, it did so after three months of consideration and six telephone discussions with the head of the CIA FOIA office, as well as consultation with OIP.”

“Second and more importantly, though, the DOJ has just stated for the record that OGIS ‘just performs mediations,’ and in support of this position cites its own regulations as if a DOJ regulation can supersede the plain language of a statute and the clear will of Congress,” McClanahan’s letter stated. “This public attempt by the DOJ to convince a federal court to marginalize OGIS and relegate it to an office which ‘offers mediation services’ is in direct conflict with both the letter and intent of the OPEN Government Act and I ask for your support in protecting the delicate balance of power between the DOJ and OGIS and ensuring that OGIS continues to be able to operate at full effectiveness despite such blatant power plays by the DOJ.”

Jessica Brady, a spokeswoman for Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said Leahy received McClanahan’s letter, but it’s the committee’s policy not to comment on pending litigation.

Nisbet, the director of OGIS, also said, “we would not want to comment about ongoing litigation.”

The DOJ did not respond to requests for comment.

Jones, of the National Security Archive, said right now “OIP appears to be winning the turf war.”

“For the FOIA to work, the public needs an independent agency – such as OGIS – that strives to release as much information as possible to the American people, rather than instinctively defend all agency withholdings for its government clients,” Jones said. “Obama has made some impressive transparency reforms (Consumer Product Safety Database,, the Open Government Initiative, the Open Government Partnership and more) but he has consistently put what he defines as ‘classified national security information’ outside the realm of transparency and accountability. So, to avoid this accountability, more and more agencies and individuals seek to classify what they do. And the universe of ‘untouchable’ classified information has grown faster than ever before.”

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