Tuesday, October 27, 2015

The Case of the Fabulously Fumbled FOIA

What’s surprising to me is not that the Department of Homeland Security, which is part of the self-described “most transparent” administration in U.S. history, waited a year to produce lame results to my Powertalk 1210 freedom of information request.  The surprise is that it produced any results at all.  I mean, the response was so poor and so meager, why bother at all?

It was obvious in August and September of last year when I started down this road that DHS had no intention of shedding any light on its handling of the refugee crisis that was flooding our southern borders at the time.   Supposedly, under the law any time any governmental event generates a document, you can have access to it as a member of the public.  Exceptions, of course, are classified documents.  The laws and process at the federal level are not the same as the local.  The federal law generally is referred to as the “Freedom of Information Act” and is pronounced FOY’-ah, whereas there’s a hodgepodge of state and local laws aimed to achieve similar purposes but which have no teeth at the federal level.  Journalists usually refer to the local laws as “FOIA” laws as well but this is not correct.

Last summer I filed a FOIA request seeking to learn what DHS Secretary Jeh Johnson and his administrators were saying to one another and to congressmen about the crisis.  DHS immediately rejected the request as being too broad.  Now, keep in mind previous similar document requests on all kinds of subjects at the local level have resulted in vigorous responses sometimes generating hundreds of pages of files; I can’t tell you how many such requests I’ve handled throughout my career as a journalist, but I do not recall a case where anyone tried to wiggle out of the work by complaining about the number of documents involved.  Sometimes public officials will refuse to cooperate, but the vast majority do comply, and there are systems within local government to support and expedite their responses.

So, after being told that my request was too broad, I broke it up into 40 pieces, each narrowly tailored to specific officials, and filed it again.  At first DHS didn’t seem to know how to handle that; the new requests were very narrow in scope, impossible to dismiss as “overly broad.”  What DHS did was to deny expedited handing (the fact that Americans might like to have had this information prior to the last congressional election did not impress DHS, which specifically rejected this as a reason to hurry up the response).  And that was the last I heard for a solid year.

This past month, the behemoth awakened.  A woman named Maura Busch told me the FOIA filing case had been reassigned to her, and wanted to know if I were still interested?  She assumed I might not be, telling me by phone, “Since this is a year old sometimes reporters will say you know I have ten more stories I’m working on now and I’ve moved beyond it.”  

You see how this works?  It’s not rocket science.  You stonewall reporters by stonewalling the reporter.  Then you might add a lame apology, as Busch did, who said, “Sorry, we just don’t have enough people anymore.”

I told her that sure, I absolutely was still interested.  What she turned over to me did not come close to meeting the scope of what I had requested.  There was an unidentified, unlabelled briefing document that looks to have been prepared either for or by DHS Secretary Jeh Johnson, discussing the crisis.  And that’s it.  Apparently no one else in government had anything to say about the crisis as it was erupting and playing itself out.

Yeah.  Right.

How do you think it would be if everyday citizens could simply blow off government requests for information in a similar fashion—starting with, say, IRS agents?  That would be a different world, wouldn’t it?  But DHS gets to follow its own rules because there are no enforcers.  There is no champion to make sure the administration carries out its self-declared transparency “policy,” which of course is a policy in  name only.  Did you know that FOIA applies not to news types, but also to private citizens?  But as a practical matter, unless you’re a deep-pocketed news organization and have the legal budget to sue, you’re screwed.  And by the way, the next time you see Associated Press or some other news organization mention the letters “FOIA,” look at how many times the news story involves a lawsuit which the news guys and gals had to win, at their expense, to bring you the information.

As for what was in the documents—very little.  The document author, presumably Johnson, expressed dismay that the smugglers were telling the immigrants they were getting a “free pass,” words which resonated with the refugees and had brought them here by the tens of thousands.  Johnson called this “misinformation” and said it was “simply wrong,” almost in hurt tones.  You can judge for yourself based on a  year’s worth of news coverage whether the  refugees did or did not get a “free pass” for crossing into the United States.

But one thing is clear.  Journalists relying on DHS to follow FOIA law are in for bitter disappointment.  The attitude of DHS officials toward this so-called transparency ranges from indifference to outright hostility.  And since this transparency "requirement" comes directly from the top, once again this reflects directly on the competence and ability of this administration to carry out it own so called initiatives.


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