Freedom of Information requests raise questions about government’s commitment to openness

The requests seemed to be the most straightforward in my more than 25 years of obtaining government records:

I asked dozens of federal agencies for databases and selected paper records covering travel by their employees. BailoutSleuth.com asked me to seek the records and analyze the data so that it could launch this new site, JunketSleuth.com

But nearly a year after I filed the first of more than 200 requests and appeals under the Freedom of Information Act, virtually none of the 60 agencies that got those requests has responded fully.

One of the recipients that refused to produce the vast majority of its travel information was the National Archives and Records Administration, the agency that the Obama administration designated to mediate disputes between FOIA requesters and government agencies.

The Freedom of Information Act, a cornerstone of open and accountable government, requires federal agencies to release all records, including databases, that are not exempt from disclosure by one of the law’s exemptions. Those exemptions generally cover classified information, some law enforcement records, confidential business documents, personal information such as social security and credit card numbers and other types of sensitive information.

The law also provides for journalists and news organizations to receive the public records without paying fees.

With the exception of some personal information and a small percentage of law enforcement travel, little of the information that I requested can legally be withheld under FOIA exemptions. What could be more public, after all, than records of taxpayer-financed trips taken by employees whose salaries, too, come from taxpayers?

These, it seemed to me, were exactly the kinds of records the law intended the public to see. Surely the government would not put up a fight.

Having been a plaintiff in several lawsuits against the federal government for refusing to release records, and having filed hundreds of administrative appeals, I wasn’t naïve. But in this instance, I thought there was little question about the right to the records I was seeking.

Besides, the Obama administration was supposed to have ushered in a new era of openness in the federal government. Hours after he was sworn in as president, Obama said, "for a long time, there’s been too much secrecy in this city," and added that his administration stood not "on the side of those who want to withhold information but those who seek to make it known."

His administration went even further, advising agencies not to withhold information just because it is exempt from release under the law. On his first day in office, Obama released an executive memo making it clear that FOIA "should be administered with a clear presumption: In the face of doubt, openness prevails. … The presumption of disclosure should be applied to all decisions involving FOIA."

Attorney General Eric Holder released his own memo, stating that "an agency should not withhold information simply because it may do so legally." But it appears that FOIA officials at many federal agencies still haven’t gotten the message. A number of agencies, including the Department of Veterans Affairs and the Department of Interior, have yet to provide a single public record to JunketSleuth, despite having received requests months ago.

Some did not provide updates or other correspondence for eight months or more.

The Environmental Protection Agency acknowledged receiving our first FOIA request on Nov. 13, 2009, and sent another letter on Dec. 4, 2009. After that, nothing.

An EPA spokesman, reminded of my request, said on July 27: "You’re right. We’re 149 days overdue." I submitted an appeal to the EPA shortly after that conversation. The agency granted the appeal on Aug. 9 and said a response would be forthcoming within 20 days, but it has yet to arrive.

Of the agencies that did respond with at least some records, most produced only a small portion of their travel databases and most didn’t bother to acknowledge, as the law requires, what they left out or why.

The bottom line: Virtually every agency – some more so than others – appeared to flagrantly violate FOIA laws.

A couple of agencies claimed that they never received JunketSleuth’s FOIA requests, despite Federal Express tracking slips that bear signatures  confirming their delivery. Several others said that it would cost more than $5,000 to copy their databases, but offered little or no evidence to justify the costs. Some agencies claimed it was technically impossible to copy their data, despite proof to the contrary.

Although many agencies quickly identified the information covered by one or more of our requests, several others claimed that the descriptions in the letters were too vague or too broad. Certain of those replies suggest that the FOIA officers reached that conclusion without conducting any search whatsoever. Other replies did not provide a single detail to demonstrate the size or complexity of the requested information.

Several agencies initially refused to provide the names of the employees who took taxpayer financed trips, but most have since abandoned that position.

At least one agency asserted that records of travel are not "agency records" falling under FOIA, so the public has no right to see them.

Several others claimed that even the records identifying the general categories of information in the database (so-called field names such as: Location Visited, Purpose of Trip, Cost of Trip, etc.) were confidential business records belonging to the outside contractors keeping the records.

A significant number of agencies told JunketSleuth that outside contractors – other agencies or private companies – maintained their travel records, and that the records either are no longer government records or could not be accessed by the agency. In other words, they claimed they couldn’t get their own records.

That does not square with language that was added to FOIA in 2007. That addition – Subsection 5 USC 552(f)(2)(B) – says that public records include: "Any information...that is maintained for an agency by an entity under Government contract, for the purposes of records management."

Still, some agencies hid behind their contractors.

"The agency does not maintain control of the data generated by the database," a March 29 response from the Broadcasting Board of Governors said. "The outside contractor for the agency’s travel, CW Government Travel, Inc., retains possession of their database."

JunketSleuth subsequently appealed, and the agency agreed in a June 28 letter to provide a spreadsheet, which has yet to arrive.

In a Feb. 22 email, the Federal Housing Financing Agency said it referred my FOIA request to the Department of Treasury’s Bureau of Public Debt, which "maintains FHFA databases." When JunketSleuth contacted the Bureau of Public Debt on July 28 to check the progress of their work, Denise Nelson said the bureau’s contract specifies that FHFA – not the bureau – is responsible for releasing the information.

"The other agencies need to read what they’re agreed to. It’s in writing," Nelson said. "They’ve agreed to handle all requests for their info."

"They probably don’t realize they do have a contract."

JunketSleuth subsequently asked agencies for their contracts related to travel databases, and those requests are pending.

Several agencies used combinations of all of the above reasons, with most using one reason at a time – offering a new reason after being unable to defend previous reasons for denying the records.

The U.S. Office of Special Counsel and other agencies claimed they couldn’t provide the records because the Department of Interior’s National Business Center keeps the records for them, and they were unable to get copies.

The Department of Interior has yet to respond to a Jan. 5 request for its own travel database. In addition, Interior has not responded to several letters and phone calls asking for data kept for other agencies that are claiming they have no access to the information.

Several agencies – intentionally or not – misrepresented their records. The Federal Maritime Commission initially sent a collection of spreadsheets of what appeared as jargon, and called it "information responsive to your request." Months later, in July, the agency acknowledged for the first time during a telephone call that its travel data actually is kept by the Bureau of Public Debt, and said that I had to ask the bureau for the information because they had no control over it.

The Selective Service System, too, initially send a small amount of largely unusable information. On March 2, I wrote to the agency’s FOIA contact ,asking:

"Does the information you sent represent the entire (travel) database, all fields, all records?"

The substance of my question was: Is this all the travel data you have?

"Yes," he responded. "The information represents the entire database, all fields all records."

What he didn’t say, however, was that this was not their main travel database (my request covered all travel databases), even though the indication he gave was that this was all they had. Weeks later, the agency acknowledged that its travel data was kept by Interior’s National Business Center, which, the FOIA contact said, controls the information. So he couldn’t get it for me.

Several agencies – despite receiving taxpayer funding – aren’t required to obey FOIA, and Obama recently signed legislation that exempts significant portions of the Security and Exchange Commission records from FOIA. At least two agencies exempt from FOIA, the Library of Congress and the Government Printing office, nonetheless agreed to provide at least some records.

JunketSleuth currently is working with its general counsel, Robert S. Hart of Dallas, to get the federal agencies to obey the law.

Russell Carollo is a Pulitzer Prize-winning journalist who specializes in computer-assisted reporting and obtaining and analyzing government records. He is working as a consultant to JunketSleuth.com and BailoutSleuth.com.

Fascinating stuff. Get those

Fascinating stuff. Get those crooked bastards!