Brumfield: Freedom From Information: What Does Hillary Clinton’s Obstructionist FOIA History Portend?

by Dale Brumfield

“The Freedom of Information Act should be administered with a clear presumption: in the face of doubt, openness prevails … All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.”

-President Barack Obama, January 21, 2009

“The Ministry is very scrupulous about following up and eradicating any error. If you have any complaints which you’d like to make, I’d be more than happy to send you the appropriate forms.”

-Sam Lowry (Jonathan Price) in Terry Gilliam’s Brazil

Transparency advocates, researchers, journalists and historians who frequently utilize Federal FOIA (Freedom of Information Act) requests for government information have even more reason to be alarmed at this possibility of a Hillary Clinton presidency, given the maddening opaqueness of the former Secretary’s own State Department, the damning Office of Inspector General (OIG) Reports on FOIA and the use of her private email server, and the Obama administration’s frustrating obliviousness to all of them.

The Freedom of Information Act – established under Lyndon Johnson in 1966 – grants the public the right to access federal agency records, guaranteeing transparency to inner government workings. The statute simply requires requesters to reasonably describe the records they wish to receive, and the agency is required to produce those records (or a valid reason for not producing them) in 20 working days, with an additional 10 days for unusual circumstances.

Under President Obama the FOIA process became an unmitigated disaster. Hundreds of thousands of requests are made each year and hundreds of thousands of these requests are backlogged, inappropriately redacted, denied or flat out ignored. Agencies, especially former Secretary Clinton’s State Department, fail to explain how to navigate their impervious processes while running up extreme delays, then frequently quote ridiculous fees to locate and copy the requested records. Requesters may pay then wait months and sometimes years before receiving a response that could be completely wrong. Even a denial on a technicality can be pointedly delayed because the agency failed for months to even read the request.

When President Obama emptily promised “the most open and transparent administration in history,” the unreasonable delays, outlandish fees and arbitrary requests for sometimes pointless detail only reinforce the perception that this administration flips its middle finger at a process specifically engineered to weed out all but the most dogged (or OCD) requesters.

According to an earlier OIG Report from January, 2016, titled “Evaluation of the Department of State’s FOIA Processes for Requests Involving the Office of the Secretary,” the State Department under Clinton had the worst FOIA compliance record of any government agency. The Center for Effective Government rated the Department an F, showing that it processed only 17% of the FOIA requests it received in 2013-2014. Under Secretary Clinton, only 14 of the 417 FOIA requests were completed within the legal timeframe. Fifty-five of the requests took more than 500 days to process. Over 240 of 417 requests are still pending.

For example, on July 26, 2013, a Ph.D. candidate at the University of Virginia made a FOIA request to the State Department, with an expected completion date was July 2014. The State Department subsequently extended the completion date three times with no explanation. The last completion date was April 2016, leaving the requester with a total waiting time of two years and nine months. It is not known if the request was ever processed at all.

Worse, the Obama Administration is either blissfully unaware that FOIA is systemically broken or more likely, simply doesn’t care. All agencies, not just the State Department, abuse and mishandle exemptions while withholding information rightfully owed to legitimate requesters. And while FOIA requirements are fairly simple and straightforward, today every agency has different policies and teeth-grinding levels of complexity, creating a hostile and confounding environment for even moderately-trained requesters.

Seemingly arbitrary fee structures based on the category of requester and the intended use of the records are an even more exasperating aspect of the FOIA process. Disproportionate fee estimates make researchers and journalists suspect for good reason that the agency is using them to deter requests. Random denials to fee waivers and refusals to recognize legitimate news outlets further exacerbate that impression.

MuckRock, an organization that assists in submitting FOIA requests, reported an extreme example when a news media requester in March 2014 sent a request to the Drug Enforcement Agency (DEA) asking for records related to the capture of Mexican drug lord Joaquin “El Chapo” Guzman. The requester finally received a response in January 2015 identifying over 13,000 case files, with a search fee of $1.5 million.

Email records are an admittedly critical component of the FOIA process. According to a November 30, 2015 email to the OIG from Marykary Carlson, Acting Executive Secretary of the State Department, the department “should fully comply with FOIA requirements and Department guidance by searching email records for all FOIA requests in which relevant records are likely maintained …” However, since FOIA neither authorizes nor requires agencies to search for federal records in personal email accounts maintained on private servers, it becomes obvious that Mrs. Clinton’s homebrew email system was deliberately designed to circumvent FOIA compliance. The Associated Press and the nonprofit organizations Citizens for Responsibility and Ethics in Washington (CREW) and Judicial Watch all submitted FOIA requests related to the former Secretary’s emails and received the response, “no records responsive to your request were located.” Judicial Watch has since subpoenaed many members of the Clinton’s State department staff in an attempt to get to the bottom of the problem.

“It is unreasonable to expect citizens to maintain trust in a government that simply ignores them when they make requests for information.” The January OIG report concluded. “The consequences of these extreme delays could have serious and far reaching effects. People expect their government to be responsive, not to stonewall them when a response is inconvenient.”

Many Democrats (and especially disillusioned Sanders supporters who now see the system is rigged against them) are twisting themselves in a knot trying to justify a Hillary Clinton candidacy after years of decrying everything she stands for. Her email stonewalling, exacerbated by two heavily critical OIG reports, coupled with the mysterious Wall Street speech transcripts and shadowy dealings between the State Department and the Clinton Foundation are continuing symptoms of a legacy of secrecy, opacity and obfuscation dating back to 1992. Everyone should pause to consider what a Clinton Presidency would mean for government transparency and to fair, open and independent journalism.


Dale Brumfield is an author and digital archaeologist living in Doswell. He can be reached at [email protected].

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