Washington, DC, July 5, 2018 — To avoid or delay the production of records requested under the Freedom of Information Act, federal agencies employ a myriad of stratagems, even after they are sued for failure to meet FOIA deadlines, reports Public Employees for Environmental Responsibility (PEER). As a result, FOIA backlogs are ballooning, more lawsuits are filed, and prospects for transparency dim.
As a byproduct of its work on behalf of public employees across the federal government, PEER has a robust and wide-ranging FOIA docket. By tipping off PEER about which documents to seek, employees eliminate the need to leak documents or become whistleblowers.
For the very reasons employees think the public should see certain documents, the agencies are reluctant to release them. One initial maneuver is to tell the requester that processing time will take forever. The State Department, for example, informs FOIA requesters that it handles “requests on a first-in, first-out basis, and currently has a backlog of approximately 10,500 cases.”
EPA Headquarters now warns requesters that due to the spike in requests “following the Presidential Inauguration…completion of your request may require up to fourteen months” and cites the average processing time for a FOIA request to the office of Administrator Scott Pruitt as “388 working days.”
“Ironically, agencies now use their lack of responsiveness as an excuse for being nonresponsive,” stated PEER Executive Director Jeff Ruch, pointing out that, by law, an agency is supposed to answer a FOIA in 20 working days, and the maximum extension is for an additional 10 days. “Of course, backlogs will only grow when agencies do not process requests expeditiously – which is precisely what is happening.”
FOIA authorizes requesters to sue an agency for flouting deadlines to compel production. In some cases, filing a lawsuit results in relatively quick resolution. In other cases, agencies roll out dilatory tactics, such as claiming a request covers a huge universe of documents which are then dribbled out over long periods of time. Examples from PEER’s current FOIA litigation include –
- The USDA Office of Inspector General claims that a request for materials supporting its 2017 audit of the Prairie Pothole conservation program covers “approximately 712,957 pages of potentially responsive records” which it will review at the rate of 500 pages per month for the next century with an anticipated completion date of 2135; and
- EPA claims it has identified 50,000 relevant unpublished documents justifying its 2017 guidance on relaxing radiation contamination standards in drinking water which it promises to review at the rate of 1,000 per month over the next four plus years.
“These agencies lasso in dump-trucks worth of useless information to slow walk their responses into infinity,” Ruch added, noting the USDA has sent over thousands of printed pages of the Code of Federal Regulations and publicly available Federal Register entries. “Since the Trump administration likes the Freedom of Information Act as much as a cat likes baths, transparency now entails siege warfare.”