Politics & Policy

The Obama Administration’s Newly Political Approach to FOIAs

(Photo Illustration: NRO; Alexandr Denisenko/Dreamstime)

At the Treasury Department, the memo came down from the deputy executive secretary, Wally Adeyemo, in December of 2009. Going forward, the memo stated, “sensitive information” requested under the Freedom of Information Act was to be reviewed not only by career FOIA officials but also by a committee of political appointees, including Adeyemo and representatives from the public-affairs, legislative-affairs, and general counsel’s office, before release.

What followed was an unusual review of Treasury FOIA requests by high-ranking political officials. And it didn’t just happen at Treasury, but at the IRS and the Department of Homeland Security, too. The Current and former FOIA attorneys at these agencies say documents requested by the media have come in for special scrutiny, called “sensitive review,” often holding up release for weeks or months. At times, these officials say, political officials delayed the production of documents for political convenience. The Wall Street Journal has chronicled how Hillary Clinton’s top aides at the State Department scrutinized FOIA requests and learned to write memos in a fashion that would avoid disclosure. 

These actions run counter not just to the spirit and the letter of the Obama administration’s pledge to unprecedented transparency, but also to the spirit of the Freedom of Information Act itself.

The behavior is part of a series of revelations about how the Obama administration has failed to live up to its lofty promises of openness and worked to avoid disclosure to the public. The media has made its dissatisfaction clear: A July 2014 letter signed by dozens of journalists’ organizations chronicled their complaints and called on the president to be more transparent. “The stifling of free expression is happening despite your pledge on your first day in office to bring ‘a new era of openness’ to federal government — and the subsequent executive orders and directives which were supposed to bring such openness about,” the letter said.

Though the Freedom of Information Act is intended to be a force for transparency insulated from politics, career FOIA attorneys say “sensitive review” introduced explicitly political considerations into the process. In internal documents obtained exclusively by National Review, career officials voiced their discomfort and dismay with the new, unorthodox treatment of FOIAs. One warned it was a “public-relations disaster.”

The political officials involved ‘were definitely concerned about appearances, about how things looked,’ says a former Treasury Department official.

The political officials involved “were definitely concerned about appearances, about how things looked,” says a former Treasury Department official who has since moved to another agency. While political officials do not appear to have prevented the release of information entirely, their involvement in the FOIA process has caused agita among career officials. Allan Blutstein, another former Treasury Department FOIA attorney, who now works for the Republican opposition-research firm America Rising, says the group that convened to review sensitive FOIA requests was akin to a “council of elders” that slowed down the release of information.

Timing is often the name of the game when it comes to FOIA work, especially for media organizations trying to cover developing stories. By law, the government is supposed to respond to all FOIA requests within 20 days and is allowed to request an additional ten days in unusual circumstances. The sensitive-review process often pushed response times beyond this window.

“In the beginning, there would be meetings every two weeks,” Blutstein says. “These meetings got canceled left and right. If they got canceled even once, that meant, ‘Well, let’s table this for the next time.’” Blutstein also says administration officials tried to delay the release of information for political reasons. “They’d say, ‘Well, let’s wait a week because the secretary has this big meeting,’ or ‘Let’s hold this for a week or a month.’”

The Treasury Department denies these claims and, in fact, says the involvement of various political officials increased transparency. Department spokesman Josh Drobnyk says that the sensitive-review process “resulted in the discretionary release of even more information” and that “it’s completely inaccurate to suggest that this process was intended to hamper the release of information.” He notes that in 2010 the Treasury Department reduced its FOIA backlog by 26 percent and that the department has been “singled out for its dedication and commitment to responding to FOIA requests.” Indeed, at a House Oversight Committee meeting last week on the FOIA process, committee chairman Jason Chaffetz praised the “dedication and commitment” of the department, which has doubled the number of career FOIA officials in recent years.

But internal department e-mails reflect the frustrations of these officials, who say the meddling of political staff slowed down their work. On February 24, 2010, Michael Bell, then the FOIA director of the Troubled Asset Relief Program, the program designed to rescue the financial system in 2008, complained in an e-mail about the delays created by the review process. Whenever he and his colleagues inquired into the sensitive-review process, he wrote, “We just get a ‘they’re in the queue.’” He asked a colleague about two FOIA requests: “Any suggestions on how we can prod these along? Neither was very controversial, but were getting requested by ‘media.’ Thanks.”

Career FOIA officials also say they came under pressure to defend their decisions about which documents to release and when. One former Treasury Department attorney described his meetings with political appointees, during which it was his job to defend the conclusions reached by career FOIA officials, as “almost like an inquisition.”

The FOIA policies contradict not only the president’s stated commitment to transparency, but also a written directive handed down by the White House.

These accounts contradict not only the president’s stated commitment to transparency, but also the spirit of a written directive handed down by the White House and disseminated to all government agencies in January 2009. That memo, which addressed the Freedom of Information Act, stated, “The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

That doesn’t appear to have been the case at the Treasury Department. Internal department documents indicate that Adeyemo’s 2009 memo setting out the sensitive-review process was a reaction, in part, to the release of then-secretary Timothy Geithner’s calendars in response to a FOIA request from the Associated Press. The calendars revealed that in the midst of the 2008 financial crisis Geithner spent an enormous amount of time on the phone with Wall Street CEOs, in particular Lloyd Blankfein of Goldman Sachs, Jamie Dimon of J.P. Morgan, and Richard Parsons and Vikram Pandit of Citigroup, eliciting a wave of negative news coverage. “Wall Street Has Geithner’s Ear,” wrote the Washington Post. The Wall Street Journal ran a story under the headline, “Wall Street on Geithner’s Speed Dial.”

In fact, Treasury’s “sensitive review” process seems to have been created after Bloomberg News requested, in 2009, the calendar of TARP’s “pay czar,” Ken Feinberg. An e-mail from an attorney in the general counsel’s office says as much, noting that “the Feinberg FOIA was the impetus for this policy.”

Adeyemo’s memo made calendars, in addition to internal correspondence, memoranda, e-mails, drafts of documents and e-mails, and travel logs of nearly all political appointees subject to review by political officials, including members of the public-affairs staff.

A cover sheet for FOIA requests elevated for sensitive review shows the political officials who needed to sign off on them. 

Requests from the media were singled out for particular scrutiny. (FOIAs are also filed by law firms, nonprofits, and other groups.) In fact, every FOIA request from a reporter, regardless of the information requested, was subject to sensitive review.

On December 9, 2009, Barbara Fleming, then the director of Treasury transparency operations, wrote to Melissa Hartman, then the acting deputy assistant secretary for privacy and treasury records, asking whether “only Press inquiries regarding what is listed as sensitive information are required to go thru this clearance process” or rather if “ALL Press inquiries regardless” were to be elevated for sensitive review. The response: “For starters we are including ALL press inquiries regardless of the level of Treasury official involved,” Hartman wrote.

Hartman, who is now retired, says she found the sensitive-review process “extremely helpful” and that it “helped keep our FOIA disclosures on track and focused the effort to get information out.” She also says that it was sometimes “able to move along requests that were taking too long.”

Other career staffers, however, explicitly challenged the process. Days after the original sensitive-review memo from Adeyemo, Blutstein, the former Treasury FOIA attorney, wrote his colleagues, “I would strongly recommend removing” the office of public affairs “from the ‘clearance’ chain — the optics are terrible.” An attorney in the general counsel’s office told him that they were a part of the process “primarily so that they will be informed of pending releases involving sensitive information.”

“Being ‘informed’ is one thing,” Blutstein wrote in reply. “However, the proposed policy indicates” that the office of public affairs and the offices of legislative affairs “will review ‘proposed redactions’ (presumably including proposed ‘releases’), and indicate their agreement or disagreement. That’s a ready-made public relations disaster.”

In an interview, Blutstein says two individuals, Adeyemo and then Christian Weideman, now Treasury secretary Jack Lew’s chief of staff, drove the sensitive-review process. Weideman came to the Treasury Department in 2010 from the White House counsel’s office. “Because of his previous association with the administration,” Blutstein says, “he was very quick to send any Treasury material that was sensitive politically to the White House counsel’s office for review, even if none of the underlying records referred to the White House or included White House emails.” (The Treasury Department declined to make Weideman and Adeyemo available for interviews.)

The agenda for one sensitive-review meeting in July 2010 shows a number of sensitive FOIA requests were sent to the White House for review. 

According to Blutstein, FOIA documents were shipped over to the White House “countless” times on Weideman’s watch, including all of the records pertaining to the $500 million federal loan to the now-bankrupt solar-panel firm Solyndra. “They were all sent to the White House,” Blutstein says.

At the request of Iowa senator Chuck Grassley and California representative Darrell Issa, the Treasury Department inspector general investigated the sensitive-review process in 2010. The report’s conclusions — that political appointees did not influence the process — contradict what several sources tell National Review. “We found no evidence that these bureaus’ procedures granted any political appointee a role in either reviewing the request or making decisions on it,” the report states. The department’s deputy general counsel told investigators that the policy was not intended to “vet” exemptions but rather “to determine when information was going to be released and to look after intra-office interests.” The report also notes that a “small percentage” of the documents subject to sensitive review were sent to the White House counsel’s office, but that the White House’s involvement was “minimal and limited in scope.”

The Treasury Department is not alone in its use of the sensitive-review process. Internal documents suggest that the IRS (part of Treasury, but with its own policies), the Department of Homeland Security, and a number of other agencies have, to varying degrees, implemented similar procedures.

At the IRS, for instance, when the legal watchdog group Cause of Action sued in 2012 to secure the release of documents under FOIA, it set off a spate of e-mails within the agency about whether the request had been subject to sensitive review. On October 12, John Davis, the agency’s chief of disclosure, wrote to Valerie Barta, a tax-law specialist, of Cause of Action’s original FOIA request: “This case we closed out in May of this year is coming back to haunt us. Gary wants to know why this was not on a sensitive case report. Can you pull this case and if you can tell why Susan didn’t put this on a sensitive case report?”

Another agency official, Rebecca Chiaramida, then the director of the IRS office of privacy, governmental liaison, and disclosure, wrote to colleagues, “Let’s make sure that, going forward, any FOIA requests that could even remotely be considered politically sensitive are elevated for discussion between us and that the response is given an extra layer of review.” One of those colleagues, chief of disclosure Gary Prutsman, responded, “This should go without saying, given our existing sensitive case reporting procedures.”

What exactly “sensitive review” involved at each agency is unclear, but the Department of Homeland Security’s processes have been revealed in the most detail. There, the role of political appointees, which began in July of 2009, eventually became the subject of a House Oversight Committee investigation in 2011. At DHS, career employees were required to provide then-secretary Janet Napolitano’s staff with information about the people requesting records under FOIA. That included information about where they worked, where they lived, and what organizations they worked for. As at the Treasury Department, every request filed by a member of the media was subject to this sort of review.

The Oversight Committee’s investigation concluded that Napolitano’s then-chief of staff, Noah Kroloff, had greenlighted a process by which political staffers had to clear all significant FOIA requests before career staffers could issue a response.

According to one former DHS FOIA official, career staffers and the secretary’s team particularly clashed over the release of the department’s controversial 2009 memo about the terrorist threat posed by “right-wing extremists.” When news of the memo became public, says the former official, 44 media organizations filed FOIA requests for it, and the media firestorm sparked calls for Napolitano’s resignation. Career staffers pushed to post the memo online. “We were absolutely required to do that,” says the former FOIA official. “But because of the pressure on the secretary to resign, we were not allowed to.”

Eventually, career staffers were pushed out or their responsibilities were curtailed. The Oversight Committee, in its 2011 report, concluded that “public relations were a major consideration when the political staff considered how to handle significant FOIA responses.”

Agency documents also indicate that the Department of Defense, the Department of Housing and Urban Development, and the Department of Veterans Affairs also have sensitive-review procedures, though it’s unclear whether political appointees are involved in the process. But what we do know perhaps helps to explain the ever-growing tension between the Obama administration and the journalists who cover it.

— Eliana Johnson is Washington editor of National Review.