The Obama administration is fond of claiming it is the “most transparent administration in history,” but that’s not the way it looks to people who have tried to gain access to records they are legally entitled to.
Earlier this week, 47 inspectors general — officials whose job is to keep federal agencies honest — wrote to Congress complaining that Obama-administration agencies had established “serious limitations on access to records,” interpreting federal law in a way that “represent[s] potentially serious challenges to the authority of every Inspector General and our ability to conduct our work thoroughly, independently, and in a timely matter.”
The letter focused particularly on obstruction from the Environmental Protection Agency, Department of Justice, and Peace Corps, but it noted that many other inspectors general had run into similar problems.
Sometimes, it said, agencies claimed that “some other law or principle trumped the clear mandate of the IG Act.” In other instances, the agencies imposed “unnecessary burdensome conditions on access” or simply threw up bureaucratic roadblocks.
It’s not just inspectors general who have struggled under the Obama administration to get access to public records. Journalists can consistently expect that their requests for records will come back weeks — if not months — after the 20-working-day deadline established in the Freedom of Information Act.
And when those records do finally arrive, they’re often heavily redacted without much justification. For example, although the law allows a “national security” exemption, it stretches credibility when agencies like the National Park Service cite this exemption, as it did once in 2013, according to the Associated Press.
Likewise, the AP found, while the Obama administration instructed agencies “to less frequently invoke a ‘deliberative process’ exception to withhold materials describing decision-making behind the scenes, the government did it anyway, a record 81,752 times.”
Reporters who attempt to appeal such outrageous so-called responses can expect to wait a year or more for any further answer.
Overall, after reviewing federal data, the Associated Press determined in March 2014 that “the Obama administration more often than ever censored government files or outright denied access to them last year.”
One of the administration’s tools for withholding access is a new requirement the White House has inserted into the records-release process, demanding to review anything it deems “White House equity” — a term apparently invented in April 2009 by White House Counsel Gregory Craig to encompass any correspondence that includes the White House as an interlocutor. The memo raised the concerns of even left-leaning groups like the American Civil Liberties Union.
Daniel Epstein, executive director of Cause of Action, says that although the concept of White House equity has never been clearly defined, it has probably been used to limit the release of records about the 2009 stimulus packages, as well as EPA records.
“If you’re a reporter and you’re not getting documents because the White House is reviewing them, that chills certain First Amendment activity,” Epstein tells National Review Online. “And if you’re a member of Congress and you’re not getting documents from the agencies that you are constitutionally charged with overseeing because the White House is reviewing them, well, that might look like obstruction of Congress. Our view is that this whole White House equity policy raises a whole host of transparency issues but also raises perhaps some constitutional issues.”
There’s reason to believe that after years of playing fast and loose with the letter of the law, Obama-administration agencies have begun to ignore it outright.
The Internal Revenue Service’s handling of the Lois Lerner correspondence is just one example. Earlier this week, Chris Horner — a senior fellow at the Competitive Enterprise Institute and counsel for the Energy & Environment Legal Institute who is an expert on the Freedom of Information Act — wrote in the Washington Times about how the EPA has inappropriately withheld work-related text messages from high-ranking EPA officials.
Specifically, Horner had asked for text messages from Gina McCarthy, the head of the EPA, who has presided over several of the Obama administration’s efforts to more heavily regulate traditional energy sources. Initially, Horner writes, the EPA claimed no text messages existed in which McCarthy discussed official EPA business.
But “McCarthy admitted through the Department of Justice that she had in fact deleted each and every one of her many thousands of texts on her EPA-provided phone,” Horner writes. “She claimed they were all ‘personal,’ even after we proved her correspondents indeed included multiple members of her EPA team.”
Horner adds that, even though many requests seek all electronic records, “it is my understanding that EPA has never before produced text or instant messages. . . . At least with Obama’s EPA and IRS, it appears we now know why — they are destroying them, illegally. This isn’t a ‘gaping open-records loophole,’ it is wanton lawbreaking because the law is quite clear.”
— Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a senior fellow at the Independent Women’s Forum.