Law & the Courts

How Obama Officials Dodge the Freedom of Information Act

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During the Watergate era, delaying tactics by government officials were dubbed “stonewalling.” Obama-administration officials seem to have added an element of farce to their cover-ups by literally going to the dogs. 

This week, the IRS admitted in court, in response to a Freedom of Information Act lawsuit brought by the watchdog group Judicial Watch, that Lois Lerner was even more secretive than we thought. Lerner, the IRS official who resigned in 2013 after allegedly discriminating against applications for nonprofit status from conservative groups, conducted much of her IRS business on a personal e-mail account in the name of her dog, Toby Miles.

Tom Fitton, the president of Judicial Watch, says there is evidence that the Obama Justice Department and the IRS have known about the Toby Miles account for some time but chose not to tell the court. A House committee months ago urged that a criminal inquiry of Lerner be initiated by the Justice Department, but so far it has been ignored. 

Lerner’s case reminds one of Lisa Jackson, the former head of the Environmental Protection Agency, who avoided government-transparency laws by conducting government business using the e-mail alias “Richard Windsor,” a name derived from a dog she owned while living in Windsor, N.J. In 2013, the Competitive Enterprise Institute sued and got 3,000 “Richard Windsor” e-mails released, but there are another 120,000 records related to CEI’s request that it hasn’t gotten. The EPA says it can process only 100 records a month — meaning that the CEI request will be fully processed a century from now.

RELATED: The Obama Administration’s Newly Political Approach to FOIAs

“Transparency and the rule of law will be the touchstones of this administration,” President Obama declared back in 2009. Rarely has there been a greater gap between what a politician said and what he did. In the mold of Richard Nixon, the White House has asserted dubious claims of executive privilege to avoid scrutiny in the Fast and Furious scandal.

Freedom of Information Act requests have been censored or outright denied on countless occasions.

Freedom of Information Act requests have been censored or outright denied on countless occasions. Lois Lerner sent an e-mail that warned IRS staffers to avoid public scrutiny by using instant messaging that automatically deletes office communications. Judge Emmet Sullivan, a Bill Clinton appointee, has become so frustrated with the IRS’s foot-dragging that last month he called the government’s slow-walking behavior “indefensible, ridiculous, and absurd” and asked, “why shouldn’t the Court hold the Commissioner of the IRS in contempt?”

The Obama administration has responded to all this by cracking down on the one internal government group of officials specifically charged with tracking down malfeasance: the 72 inspectors general who oversee federal agencies. 

The Council of the Inspectors General on Integrity and Efficiency sent a letter to Congress this month warning that a recent ruling by the Obama Justice Department, which now requires inspectors general to get permission from agencies they monitor for investigative information, is a “serious threat” to their independence. They urged that Congress should “promptly pass” a law affirming their oversight authority.

RELATED: The Modern Left Doesn’t Care About FOIA — Or Much Else, Really

Representative John Conyers, a Michigan Democrat and former chairman of the House Judiciary Committee, agrees that the Justice rule is a clear violation of the Inspector General Act of 1978 in that it would allow an agency to completely withhold information from the IG.

The IG letter reads in part: 

Without timely and unfettered access to all necessary information, Inspectors General cannot ensure that all government programs and operations are subject to exacting and independent scrutiny. Refusing, restricting, or delaying an Inspector General’s independent access may lead to incomplete, inaccurate, or significantly delayed findings and recommendations. . . . It also may impede or otherwise inhibit investigations and prosecutions related to agency programs and operations.

What makes the IGs’ letter all the more troubling is that most of them were appointed by President Obama and confirmed by a Democratic Senate: It’s impossible to characterize them as wild-eyed partisans. 

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Another group that can hardly be accused of membership in a vast, right-wing conspiracy is the coalition of 53 press and open-government organizations that this month “once again” urged President Obama “to stop practices in federal agencies that prevent important information from getting to the public.”

In their letter they cite examples such as “refusing to allow reporters to speak to staff at all or delaying interviews past the point they would be useful.” Another tactic used by Obama officials is “monitoring interviews and speaking only on the condition that the official not be identified, even when he or she has the title of spokesperson.”

RELATED: How the State Department is Stiffing the Intelligence Community Out of Hillary Clinton’s E-mails

The Freedom of Information Act has been increasingly warped by the Obama administration into a Free Us from Information Requests Act.

Take The Associated Press’s lawsuit requesting information, under FOIA, on Hillary Clinton’s e-mails at the State Department. Last month federal judge Richard Leon blasted the State Department’s proposed plan, to begin producing documents by December, as not “anywhere near aggressive enough.” Even “the least ambitious bureaucrat,” he added, would be able to quickly fulfill one of the requests for 68 pages of documents.

Not surprisingly, Hillary Clinton has set the gold standard for concealment during the Obama era.

Not surprisingly, Hillary Clinton has set the gold standard for concealment during the Obama era. She used a private server and e-mail account to conduct all her government business and surrendered the server only after months of stonewalling. When she did hand over some of her e-mails in March, she did it on paper, to make it as difficult as possible to read them, and so metadata associated with them wouldn’t be included. 

Of course, Team Obama isn’t the first White House to avoid transparency. In 2007, it was revealed that some Bush White House officials had used private e-mail accounts set up on a server through the Republican National Committee and that some of the e-mails were likely not recoverable. While the RNC servers were supposed to be used only for political matters, not official business, it’s likely there were violations of that policy. But what have been off-and-on attempts at avoiding transparency in previous administrations has become a type of official policy in the Obama era.

Tom Coburn, who served as the GOP ranking member on the Senate Government Reform Committee until his retirement last year, once partnered with Senator Barack Obama to sponsor a transparency-in-government bill. He recently told me how deeply disappointed he is in the anti-transparency precedents set by this president: “If the next administration is allowed to pursue the same policies, what will become of us when so much of what government does can be hidden from all of us?”

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