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Justice Department Given Award for Worse FOIA Performance

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On February 14th, the National Security Archive gave the not-so-prestigious Rosemary Award to the U.S. Justice Department for the worst performance when it comes to “Open Government”.

The Rosemary Award is a dishonor bestowed upon the one government agency that performed that absolute worst when it comes to honoring President Obama’s “Open Government” pledge, and providing U.S. citizens with free and open access to information at the Justice Department that is no longer classified, or should no longer be classified or otherwise hidden from the public.

The Justice department was issued what is essentially a “citation” for a long laundry list of actions that show the Department of Justice does everything in its power to cover-up, hide, and sweep information as far away from public view as possible. In its February 14th release, the National Security Archive provided a long list of reasons for giving the DoJ the “Award”.

The award itself is named for the secretary of President Nixon, who came up with an elaborate explanation as to how she “accidentally” erased over 18 minutes of audio tape from the crucial Watergate tapes – conveniently removing information from those tapes that many people would have provided damning information about the President and his part in Watergate.

Why The Department of Justice Received the Award

Why does the National Security Archive believe the Justice Department performs the most poorly when it comes to the idea of Freedom of Information? The organization, based at George Washington University, provided a long list of detailed reasons for the Award.

Those included:

1. Selectively prosecuting whistleblowers who leak classified information. The Archive points out that the agency is “over-classifying” information at a rate of 50 to 90% and that targeting whistleblowers so much within the last three years has been just one part of the overall attempt to protect the secrecy of all of that information.

2. Making “recycled legal arguments” before the Supreme Court in 2011, calling for greater secrecy in spite of President Obama’s statement that government agencies should follow a police of “presumption of openness” when it comes to whether or not to make information secret.

3. The Department’s efforts to make it more difficult for school students, bloggers and “new media” from seeking the same fee waivers that conventional journalists and writers can ask for, in addition to asking for regulations allowing the government to lie about whether records exist when they are requested for by FOIA submissions.

4. Justice Department cited FOIA exemption (b)(5) “deliberative process” a tremendous 1,500 times in 2011, even higher than the 1,231 claimed exemptions in 2010.

The Archive does concede that the DoJ has at least established online reading rooms and public access to FOIA released information, with overall FOIA releases up in 2011. However, the Archive points out that the overwhelming number of actions by the Justice Department to cover-up more information than it releases, and efforts to thwart public efforts to obtain FOIA information, proves that the DoJ is the agency most deserving of this non-prestigious award.

justice department foia

Holder Responds to Rosemary Award

On March 12th, Attorney General Eric Holder responded indirectly to the Rosemary Award by making a speech at the start of Sunshine Week 2012, stating that the DoJ’s FOIA efforts are “nothing short of remarkable.”

In the speech, Holder repeated the statistic that the DoJ has a 94 percent FOIA release rate and a 26 percent FOIA backlog reduction.

Unfortunately, the DoJ statistic of 94 percent is dishonest and misleading because according to the Archive, it leaves out 9 out of the 11 reasons the DoJ gives for declining FOIA requests.

That means that the 94 percent figure does not include times that FOIA requests are denied because the price of the request was too high for the FOIA submitter to pay, the request was passed off to a different agency, and no records found due to, as the Archive puts it, “inadequate searches by DOJ employees.”

The Associated Press performed it’s own calculations, taking all denials into account and leaving nothing out. What the AP found was that the 37 largest governmental FOIA agencies actually had a 65 percent release rate.

To make matters worse, Holder’s statement that the FOIA backlog has been reduced is also untrue. According to the Archive, the so-called “reduction” left out over 3,000 FOIA requests that are still pending but are not technically “overdue” yet.

The National Security Archived conducted an even deeper analysis of the problems that the DoJ seems to have with releasing information to the public, and found that the offices that perform the worst when it comes to FOIA requests include the Office of the Attorney General, the Office of the Deputy Attorney General, and the Office of the Associate Attorney General.

However, not all is doom and gloom. The Archive also points out that several government agencies are doing a stellar job in releasing information to the public. Those agencies include the FCC, the Nuclear Regulatory Commission (even quickly releasing documents on the Fukushima disaster), the Social Security Administration, and the Department of the Interior.

The Archive made it clear what the DoJ needs to do to improve:

“Holder must force his Department of Justice to work toward actual, difficult, fundamental, FOIA change within his DOJ and throughout the federal government, rather than merely restating his Office of Information Policy’s misleading FOIA statistics.”

Unless the DoJ performs better this year than it did last year when it comes to approving FOIA requests, the odds are good that the Justice Department will probably receive the Rosemary Award in 2012 as well.

References & Image Credits:
(1) National Security Archive Rosemary Award
(2) National Security Archive – Holder Responds

Originally published on

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