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Friday, May 13, 2005

Uncle Sam's Attitude Toward FOIA: "Obfuscation on Behalf of Opacity"

That has to be the best description ever of how the Justice Department views the Freedom of Information Act (FOIA). I wish I could take credit for the phrase but it's a product of the fertile mind of Winfield Myers of Democracy-Project.com.

As evidence that Myers has nailed it, consider the following exchange during Wednesday's House Reform Committee Subcommittee hearing on the FOIA in which Deputy Assistant Attorney General Carl Nichols was asked by Rep. Edolphus Towns, D-NY, what Justice does to ensure compliance by federal agencies:

TOWNS: Mr. Nichols, there are concerns that agencies are not being compliant with the visions of FOIA relating to response time. Can you offer us some specific examples of what the Department of Justice has done to enforce agency compliance with FOIA? Has your DOJ FOIA office been active in enforcing agencies to be in compliance with their FOIA activities?
NICHOLS: I want to make clear that our oversight responsibility, as we discussed earlier and I think is in my testimony, is that we're responsible for encouraging agencies to comply with FOIA in a timelyand consistent manner.

TOWNS: How do you do that?
NICHOLS: We post guidances. We have a full-time staff that consults regularly with FOIA. Several members of that staff are here today. The Office of Information and Privacy, OIP, they have a very robust web page that gives agencies guidance on both substantive and procedural aspects of the act to encourage their compliance with the act.
TOWNS: But there's nothing you could do, though, if they do not comply?
NICHOLS: I'm not sure what you mean by nothing we can do.
TOWNS: Yes, what can you do, then? Maybe that's a better way to put it?
NICHOLS: Well, I think I've said we encourage their compliance.
TOWNS: Encourage? Could you be a little bit more specific?
NICHOLS: I think, A, we make sure they understand their obligations under the act. B, we talk to them about their obligations in the act. C, we publish this guide that tells them what they're supposed to do and this is not a small book, obviously. This lays out their various obligations, and we try to make sure they understand as best they can what they're supposed to do. I think those are important, substantial efforts that we undertake, and we devote a substantial number of people, time and effort to attempting or pushing agencies to comply with their obligations.


Towns asked a simple question - what do you do when agencies don't comply? Nichols clearly didn't want to respond to that question on the record because the answer is essentially "nothing." So instead he repeated what he'd already said about "encouraging" compliance.

Nichols was later asked by Rep. Todd Platts, R-PA, the subcommittee chairman, if Justice ever directs an agency to reverse a decision to withhold requested documents. Nichols said he was unaware of any examples but promised to check and get back to the subcommittee for the record.