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Tuesday, August 30, 2005

OPEN GOVERNMENT: Nearly Three Years Later, Justice Department Answers an FOIA

On Nov. 8, 2002, yours truly submitted a Freedom of Information Act (FOIA) request to the Justice Department's Office of Information and Privacy requesting copies of all emails mentioning my name, the name of a colleague here at The Heritage Foundation, The Heritage Foundation and the part of the think tank I oversee, the Center for Media and Public Policy.

For some reason, the OIP only received my FOIA on December 10, 2002. But then the months started rolling by and I heard nothing in the way of response. More months went by and I figured this was just another example of an FOIA being ignored by the bureaucrats. It's an experience with which all journalists, including myself, who have ever submitted FOIAs have been through many times.

But then lo and behold, more than 33 months later, what arrives in my mail on Aug. 23, 2005, but an official response to my 2002 FOIA. It's precisely the kind of response that makes you wonder on the one hand why the bureaucrats even bothered and on the other hand are they doing it purposely to discourage journalists from using the FOIA.

It's not simply that the response was nearly three years late. It's what is and isn't contained in the response. For example, the response's signer, Melanie Ann Pustay, a career civil servant who is OIP's Deputy Director, claimed that she had "determined that the responsive portions of 10 documents, totalling 15 pages, are appropriate for release without excision and copies are enclosed."

In fact, six documents, not the 10 claimed by Pustay, were provided without excisions in the response.

Pustay further claimed in the response that she also enclosed "four documents, totalling five pages, that are appropriate for release with excisions made pursuant to Exemptions 5 and 6 of the FOIA."

In fact, the response included eight documents totalling 10 pages that included excisions.

Then Pustay helpfully added that "lastly, three documents totalling seven pages are being witheld in full pursuant to the deliberative process privilege of Exemption 5."

In addition, only one of the documents provided in the response concerned the issue which generated my original FOIA and it was not even from the period of time I specified!

Maybe there is a connection between that issue and the irrelevance displayed by Pustay's response. My FOIA was inspired by the following: At the request of a Scripps Howard journalist in 2000, Heritage's Center for Data Analysis conducted the most comprehensive statistical analysis ever done of the effectiveness of the government's COPS program.

The COPS program was the Clinton administration initiative that was claimed to have put 100,000 new policemen on the streets and thereby reduced the nation's crime rate. The Heritage study found no statistically demonstrable connection between a community's receiving COPS grants and either an increase or decrease in the community's subsequent crime rate.

A few months after Scripps published stories based on the Heritage analysis, the Justice Department made public a study it had financed with tax dollars by two academics. That study found a strong correlation between COPS grants and decreasing crime rates. Release of the tax-paid study happened to coincide with congressional consideration of the COPS program's future.

As is standard procedure in legitimate statistical analyses, Heritage made its datasets and methodology available on request to anybody who asked, which included one of the academics who got the Justice funding. But when Heritage asked for his datasets and methodology in return, he refused, claiming the grant under which the study was conducted had not yet expired.

There ensued more than a year of effort by Heritage to obtain from the two academics or the Justice Department the datasets and methodology of the tax-paid study being used by the government to justify continued appropriations for the COPS program, which had already consumed more than $7 billion. Put another way, the tax-paid study was being used in a propaganda program for more spending on COPS.

Heritage did finally obtain the datasets and methodology of the tax-paid study but only after the intervention of a Member of Congress. Not surprisingly, the tax-paid study had a fundamental flaw - it looked at only one year - while the Heritage analysis looked at seven years worth of data that included every COPS grant ever made to that point in the program's life.

This is not a new topic for yours truly. Some previous columns here, here and here.