No Deterrence, No Transparency?

Could a contributing factor to the 28 percent rise in FOIA litigation during President Barack Obama’s first term in office be that a little-known provision in the Freedom of Information Act has not been utilized?

That provision, found at 5 U.S.C. 552(a)(4)(F), calls for three actors to hold FOIA abusers accountable:

the courts, which may issue a finding that the circumstances surrounding an improper withholding “raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding”;

the Special Counsel, which “shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding”; and

the Attorney General, which has the responsibility of notifying the Special Counsel each time a court makes the determination above.

The Attorney General also has the responsibility of submitting an annual report to Congress on the number of times this has happened in the past year (this is a new provision, added by the OPEN Government Act of 2007).

I recently made a FOIA request to the Justice Department for these reports. Here is its response:

Please be advised that the Department of Justice annually submits to Congress a FOIA Litigation and Compliance Report, in compliance with 5 U.S.C. § 552(a)(4)(F)(ii)(II). These reports are made available online at http://www.justice.gov/oip/reports.html#s3. For your information, once the calendar year 2012 report is submitted to Congress, it will be posted on this same website. Additionally, please note that information regarding notifications from the Attorney General to the Office of Special Counsel is provided on the final page of the report.

If you follow that link, and track the reports for 2008-2011, here’s what you will find:

2008: “During 2008, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.”

2009: “During 2009, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification to the Special Counsel was necessary.”

2010: “During 2010, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.”

2011: “During 2011, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification to the Special Counsel was necessary.”

So there you have it. No judicial findings since the OPEN Government Act was passed. No Special Counsel investigations. No discipline. And no deterrence. Is it any wonder we’re witnessing a 28% increase in FOIA lawsuits?

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3 thoughts on “No Deterrence, No Transparency?

  1. This is fascinating, for I am actually in federal district court in San Diego under an appeal of a decision by Susan Tsui Grundmann, Chairman of the U.S. Merit Systems Protection Board (MSPB), in which she stated in a letter to me that my FOIA and Privacy Act requested documents had been destroyed. I subsequently found them on my own at the National Records Center in Chicago. This request that I made of the MSPB was part of a larger attempt at getting my appeal reopened based on new and material evidence that was not readily available at the close of earlier hearing. It also includes a subsequent finding/admission by the U.S. Office of Personnel Management (OPM) that the removal process against me was improper, which is also supported by a 9th Circuit ruling. Susan Tsui Grundmann and Anne M. Wagner have actually attempted to impede my attempt at redress, which amounts to obstruction of justice and a violation of constitutional tort claims. This case has been in federal court out here in San Diego for two years, initially starting with the FOIA and Privacy Act matter, then mushrooming into something much larger.

  2. The reporting provision isn’t actually new. Before the 1996 amendments, it was part of the agency annual reporting requirements in subsection (e). The 1996 amendments eliminated the agency reporting. The 2007 amendments then added back a similar thing, at DOJ rather than per agency, as part of (a)(4)(F).

    • Thanks. I’ll take a look at that legislation. I’m interested in OSC’s role in FOIA accountability through the years, to the extent there is one. It’s puzzling that it’s not part of the conversation.

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