Federal government must allow access to records
In advance of national Sunshine Week, the United States Department of Justice announced that “demand for Freedom of Information Act requests reached a record high in FY 2022 with 928,353 incoming requests.” DOJ further boasted government departments and agencies had “processed a record high of 878,420 requests.” But what about the other 50,000 requests? Were they not processed? Denied on some basis? Lost?
For example, why is it that more than six years after Congress mandated departments make their records available on the federal online FOIA portal, multiple agencies and departments have not complied?
Once in a while, a federal judge will rule that a department or agency's FOIA practices are illegal. But if the result of the court ruling is little more than a gently worded admonishment from an agency FOIA office manager not to declare every request on a given topic “overly broad,” one can fairly question whether the judge's ruling will actually result in a change in federal agencies' FOIA practices.
Indeed, it has been a year since Attorney General Merrick Garland issued a memo to all executive branch agencies and departments regarding FOIA compliance. Garland certainly talked a good game in the memo: “Information that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure. In case of doubt, openness should prevail. Moreover, agencies are strongly encouraged to make discretionary disclosures of information where appropriate.”
Yet despite reminding both career civil servants and political agency/department heads of the 2016 FOIA statutory update's requirement on adhering to the “foreseeable harm” standard, at Cato we continue to receive FOIA responses in which records are withheld in part or in full for no truly legitimate reason. This is even after filing appeals citing Garland's memo.
A recent case involving the FBI will illustrate the point.
In June 2019, I filed a FOIA for records on the late Representative Otis Pike, D-New York, who chaired the House Select Committee on Intelligence investigation into the Central Intelligence Agency's performance and conduct. It wasn't until May 2022 that I finally received a paltry 13 pages of material from the Bureau.
One of those documents, however, caught my attention.
It was a Dec. 5, 1975, FBI letterhead memo on “Alleged South Korean Activities in the United States” and clearly involved efforts by the South Korean intelligence service to gain information from U.S. House and Senate members. The document showed the now-late Sen. Strom Thurmond, R-South Carolina, was aware of the FBI counterintelligence investigation, and that his Senate colleague, James Eastland, D-Mississippi, might have been one of the South Koreans' targets.
Given the recent and ongoing concerns over attempts by Russia and China to influence the American political process, I thought it would be interesting to write a piece about how even American allies attempt to do exactly the same thing. But at least half of the five-page memo remained redacted, something that would make it more difficult to tell the full story.
I then appealed the FBI's heavy-handed censorship of a nearly 50-year-old document to the Justice Department's Office of Information Policy, explicitly referencing the March 2022 Garland memo telling government FOIA offices that, “In case of doubt, openness should prevail.”
To my surprise, OIP remanded the document back to FBI for further declassification review. But last month, the fresh response I got from the FBI after their remand “review” resulted in ... the same, still heavily redacted five-page memo.
James Eastland, Strom Thurmond, Otis Pike, and no doubt the FBI Washington Field Office agents who were chasing their South Korean counterparts around Capitol Hill are all long since dead. There's no genuine national security secret to protect here. There never really was.
There are literally millions of pages of FBI records just like the memo I described above that are collecting dust when they should be in the public domain.
In the past, the Congress has seen fit to mandate massive historical record declassification programs. The FBI's historical records should likewise be a congressional legislative declassification and release target. America's true and full history can only be told when those records finally see the light of day.