Since its enactment almost 60 years ago, the Freedom of Information Act (FOIA) has been updated multiple times, often in order to try to stop prior federal agency or department practices that thwarted the FOIA’s intended purpose: increased government transparency. Based on the experience of Cato and several news organizations and reporters, federal agencies and departments are now using a new tactic to discourage or thwart FOIA requests: ludicrously low document production schedules.
Cato, Advanced Magazine Publishers, Bloomberg News, Buzzfeed News, and journalists Jason Leopold and Jimmy Tobias have all encountered this issue.
Specifically, the Departments of Justice, Defense (DoD), and Health and Human Services (HHS) as well as the Office of the Director of National Intelligence (ODNI), the Central Intelligence Agency (CIA), and the National Archives and Records Administration (NARA) are refusing to process and release any more that 250 pages per month in FOIA lawsuits brought by the plaintiffs listed above. In the case of Justice components, and specifically the FBI, this represents a 100 percent reduction over their previous monthly document production schedule from just a year ago.
A current Cato FOIA lawsuit against the FBI focused on Situational Information Reports (SIRs) produced by any Strategic Information Operations Center (SIOC) established between January 1, 2020, and January 31, 2021.
When the FBI believes that specific domestic incidents may lead to large scale protests and potential violence, the Bureau will often activate a SIOC and issue SIRs–a form of real-time intelligence product–to other federal, state, and local law enforcement partners. Cato is seeking a year’s worth of such data from the critical period covering the George Floyd murder protests and the post-election political protests culminating with the January 6, 2021, attempted coup by then-President Donald Trump and several thousand of his supporters to compare the Bureau’s response to each crisis.
On October 10 and without notifying Cato or its counsel, DoJ filed a report with the court confirming it had located “approximately 10,596 pages of potentially responsive records” and that it was “approximately 10,596 pages of potentially responsive records” and would complete reviewing and releasing all the material “on or before July 5, 2028” with the caveat that the July 2028 date “may be delayed should the FBI need to consult with other agencies and need to await responses from any such consulted agencies before making any final productions.”
Simply stated and for reasons the FBI has never credibly explained, the Bureau intends to take almost five years to review and release critical law enforcement records on events from one of the most volatile and politically and socially consequential years in American history. And this is hardly the most outrageous example of FBI record production stonewalling.
Nearly five years ago this month, Cato filed a FOIA suit seeking the release of all FBI External Intelligence Notes (EINs) produced since that particular FBI intelligence product was created. During the still-ongoing litigation, the FBI has fought to keep every single one of these EIN’s secret, despite the fact that almost none of them contain classified information and that they are shared widely with federal, state, and local law enforcement partners.
In another Cato FOIA case seeking FBI investigative records known as “Assessments,” a type of investigation that can be opened on any person or organization without them having committed any crime, the FBI’s claimed processing times were astronomical. In court filings, the FBI claimed that processing Cato’s request as submitted would take nearly 2000 years. Even after Cato downscaled its request by 99 percent, the Bureau still claimed it would take over 200 years to process less than 1100 closed (i.e., finished or inactive) Assessments.
Congress cannot allow the FBI or any other federal agencies to process so few records that they become useless to the journalist trying to break news. Congress also cannot allow the Bureau or other federal entities to have FOIA processing times measured in centuries, much less millennia. These tactics, which appear to have been adopted across the Executive branch, must be prohibited in statute.
A fair system would guarantee requesters get the documents they seek in a truly timely fashion. To that end, Congress needs to once again update the FOIA statute.
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For journalists or others in the information dissemination and public policy arenas working breaking developments, Congress should enact legislation that ensures that the FOIA’s “expedited processing” provision is defined as requiring full production of all responsive records in no more than 30 days.
Failure to do so should not only provide requesters with a cause of action in federal court, but the government should also be forced to pay any attorney fees incurred in litigation, rather than allowing the Justice Department to try to stiff-arm requesters and their lawyers as they do today.
Agencies or departments that are sued for failure to honor the original FOIA request within the 30-day time frame would have no more than 30 additional days to produce the records at issue. Failure to do so would then automatically result in an across-the-board 1 percent cut to the agency or department’s operating budget. Federal agency and department leaders are not going to take FOIA compliance seriously unless and until they know their entire organizations will suffer unless they produce the records requested as required by law.
To address the huge and every growing backlog of federal records, Congress should declare any permanent federal records 25 or more years old to be presumptively declassified (where applicable) and that all other FOIA exemptions potentially applicable to such records are waived and considered reviewed and the material made available to the public via NARA’s website or physical repositories.
If enacted, these proposals would make FOIA what its creator, the late Rep. John Moss (D-CA), intended it to be: a powerful tool for enabling meaningful citizen oversight of the federal government.
Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute.