IDFI is publishing an interesting article about the practice of Freedom of Information in the USA, the country being initiator of the “Open Government Partnership”. Find out how the Department of Justice is trying to “improve” the public information release rate since it was awarded with “Rosemary Award” for the worst open government performance in 2011 by the National Security Archive (“Rosemary Award” is named after the secretary of the president Nixon, Rose Mary Woods, who erased part of the Watergate tapes).

FOIA Statistics Shows the DOJ’s “94.5% Release Rate” is a –Ahem– “Stretch.”

February 29, 2012by Nate Jones

In response to being awarded the Rosemary Award for worst open government performance in 2011, Department of Justice spokeswoman Tracy Schmaler told the Associated Press, that “Anyone who knows anything about the Freedom of Information Act will tell you that the Department of Justice is doing more than ever to promote openness and transparency under that act.”  I guess she was insinuating that the National Security Archive, which has filed over 40,000 Freedom of Information Act requests since 1985, doesn’t know anything about FOIA.

Then, two days after it received its Rosemary Award, the DOJ Office of Information Policy claimed on its website that the Department of justice had achieved an absolutely astounding “94.5% release rate”of FOIA requests in 2011.

A whole lotta blue. Figure posted on the DOJ OIP's website.

But if you actually look at the DOJ’s FOIA statistics that it reported in its own annual report, this bold claim turns out to be a bit of a –ahem– “stretch.”  The Freedom of Information Act requires agencies to report how often records are denied to requesters, and the reasons for these denials.  In its FY2011 FOIA report, the DOJ cited eleven reasons that it had denied records to requesters.  But to reach this “94.5 release rate” the DOJ OIP chose to compare only two of the eleven reasons that it had denied documents –using exemptions to deny a document in full, and using exemptions to deny a document in part (a document with only one word released is still considered only a “partial denial”).

From the DOJ's Annual FOIA report.

But when it reported its “94.5 release rate,” the DOJ did not include the FOIA requests that it denied based on reasons including: fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits); “no records” (very frequently the result of inadequate searchers by DOJ employees); and reqeusts ”improper for other reasons” (which ostensibly includes the “can neither confirm nor deny” glomar exemption).

When the full eleven reasons for denial are factored in, the Department of Justice’s “release rate” is a much more believable 56.7 percent.

Consisting of data from the DOJ FY 2010 FOIA report. By The National Security Archive.

The “liberties” that the DOJ took with its FOIA “release rate” lead to questions about the validity of the other FOIA stats on OIP’s website –including those showing additional FOIA gains (Stay tuned).Definitely worth the watch.

But quibbling over numbers misses the more important point.  As Senator Grassley reminded the head of DOJ OIP, Melanie Pustay –who has served as head of OIP since 2007– at a March 15, 2011 Senate hearing, “The president set a very high benchmark [on FOIA]. And if we’re doing the same thing after two and a half years of this administration, the same as we’ve been doing for 20 years, the president’s benchmark isn’t being followed by the people he appoints.”  Meeting the President’s benchmark means doing more than releasing slightly more documents slightly more quickly than in the past (this is welcome and commendable, but not enough).  Meeting the benchmark means that DOJ OIP must become a FOIA role model and change agent throughout the federal government.  It’s means not passing retrograde FOIA regulations (which are a model for other agencies) that allow –among other steps back– lying to FOIA requesters and deciding that online media (ranging from bloggers to Propublica) will not receive media waivers.  It’s means policing and forcingthe 96 other federal agencies –even “intelligence agencies”– to meet the very high standards set by President Obama. It’s means not making “odd”arguments to the Supreme Court that FOIA should become a withholding, rather than a disclosure, statute.