DOJ prosecutes single FOIA dodger while defending systemwide evasion

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg chair connected authorities secrecy astatine Freedom of the Press Foundation (FPF), and invited to The Classifieds. Read connected to study astir the week’s apical secrecy news.

The first FOIA felon

David Morens, the erstwhile elder National Institutes of Health charismatic who bragged that he “learned from our foia woman present really to make emails vanish aft i’m foia’d,” has pleaded guilty to a felony count of conspiracy to defraud the United States by obstructing Freedom of Information Act compliance. He will beryllium sentenced connected Nov. 12, facing up to 5 years successful situation and a $250,000 fine.

As I’ve said before, what Morens did was “egregious and wrong.” Yet it’s intolerable to disregard the hypocrisy of the Department of Justice’s fierce prosecution of Morens, while simultaneously making nationalist entree to records crossed the executive branch — from agency records to the president’s — much harder.

Typically, FOIA evasion aliases noncompliance is treated arsenic a civilian matter, not a criminal one. For example, neither erstwhile Secretary of State Hillary Clinton’s usage of a backstage server nor an ever-growing number of Trump officials’ usage of disappearing messaging applications to subvert the records rule person resulted successful criminal convictions.

And erstwhile President Bill Clinton’s erstwhile National Security Adviser Sandy Berger was criminally charged for stealing classified records from the National Archives, it was for unauthorized removal of classified material, not FOIA evasion. Berger besides didn’t look immoderate jailhouse time, alternatively performing 100 hours of organization service.

The DOJ collapsed that precedent pinch Morens by treating his FOIA evasion arsenic a conspiracy to defraud the United States authorities nether Title 18 of the U.S. Code — making it a criminal case.

Because FOIA evasion has typically been treated arsenic an administrative matter, FOIA enforcement is mostly toothless, and compliance continues to deteriorate crossed the national government. However, it’s highly improbable that pursuing criminal convictions against individual officials is going to consequence successful systemic improvement.

Perhaps we should move toward a early wherever location are harsher punishments for evading FOIA. But targeting individual bad actors pinch comparatively small powerfulness to alteration their agency’s wide civilization isn’t going to beryllium effective.

A amended replacement for improving compliance would beryllium imposing meaningful financial penalties astatine the caput aliases head level for systemic failures successful agency FOIA offices. This could unit cabinet-level activity to genuinely put successful transparency — alternatively than conscionable opening agency books erstwhile it relates to the administration’s favourite governmental controversies.

DOJ defends wide FOIA closure policies

Meanwhile, arsenic the Justice Department pursues individual bad FOIA actors successful court, it defends an full agency — the Energy Department — that was attempting to unlawfully adjacent arsenic galore FOIA requests arsenic imaginable astatine once. Luckily, a national judge precocious struck down that attempt.

Last August, the Energy Department published a notice successful the Federal Register notifying FOIA requesters that it would nonstop retired “still interested” letters for each requests received earlier Oct. 1, 2024. If responses were not received wrong 30 days, the requests would beryllium closed — moreover though existent Justice Department guidance says “still interested” letters should beryllium sent arsenic sparingly arsenic possible.

The agency based on this bonzer measurement was basal to clear its backlog — and apparently this was the go-to move, alternatively than investing much resources and improving FOIA processing policies.

That’s why watchdog statement American Oversight sued — and won. U.S. District Judge Amy Berman Jackson noted successful her ruling that thing successful the FOIA statute allows an agency to adjacent a petition simply because it doesn’t person a consequence to a “still interested” letter: “If anything, the plain matter of FOIA suggests the opposite.”

While the projected norm was struck down, agencies for illustration the Defense Department still send yearly “still interested” letters to trim their backlogs. Requesters who person these letters, aliases person their requests closed for not responding, should mention Jackson’s ruling successful their appeals.

American Oversight is continuing its efforts to extremity a akin believe astatine the U.S. Agency for International Development.

What I’m reading

Transparently yours,

Lauren Harper
Daniel Ellsberg Chair connected Government Secrecy
Freedom of the Press Foundation