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Congress must fight for FOIA in 2015

Without strong freedom of information laws, leaks are the only effective response to institutional secrecy

January 9, 2015 2:00AM ET

Despite the laughable claim that his is “the most transparent administration in history,” President Barack Obama continues to preside over some of the most hostile opposition to government transparency in modern U.S. history. His administration has prosecuted more whistleblowers than all previous administrations combined, and it has fiercely fought attempts to shed light on troubling government activities — from the FBI’s use of national security letters, which force companies to produce customer data under gag orders, to the deployment of cellphone surveillance equipment in cities across the country. This obscurity is not unique to any one agency: From local police departments to the highest levels of government, a culture of secrecy has taken root in which the centers of power use increasingly extraordinary measures to prevent the public from finding out what they are doing.

The eleventh-hour killing of a modest transparency bill last month under pressure from the Obama administration further underscores the staying power of this opaque landscape. The bill would have simply codified a set of existing guidelines for Freedom of Information Act (FOIA) requests made by citizens to compel the disclosure of government records, making it harder for authorities to withhold documents or charge requesters exorbitant fees.

But the bill was unceremoniously held, despite nearly unanimous support in both houses of Congress, ensuring that transparency will remain elusive to many requesters in 2015 — and suggesting that some answers may be revealed only through leaks, hacks and other less-than-legal means.

A flawed law

The death of the FOIA Improvement Act is particularly infuriating to anyone familiar with the FOIA process. In theory, public records laws such as FOIA are supposed to favor disclosure and provide for the timely release of documents from police and government agencies. But in practice, success often requires a sophisticated understanding of the system and relevant laws. According to Muckrock, a popular website that streamlines and tracks FOIA requests, less than a quarter of the more than 12,000 requests it has tracked since 2010 have resulted in the release of government records.

That’s partly because in addition to failing to meet mandatory response deadlines, many agencies frequently use FOIA’s broad exemptions to heavily redact or completely withhold documents, particularly those related to policing and national security. Officials in the notoriously opaque New York City Police Department even attempt to hide their own FOIA guidelines and classify documents under a made-up system with no basis in law.

With federal agencies, the most frustrating obstacle to the release of records is an exemption under section (b)(5) that prevents disclosure of “inter-agency or intra-agency memorandum or letters” that would be privileged during a civil litigation. The exemption was meant to prevent the disclosure of active deliberations such as attorney-client privileged communications. But the language is so broad and so frequently invoked that many FOIA requesters accurately refer to (b)(5) as the because we said so clause. Despite the Obama administration’s initial promise to reduce its use, such exemptions are at an all-time high: In 2013 the government cited the clause a record 81,752 times.

This is precisely why the FOIA Improvement Act is needed — and likely why it was summarily quashed. The bill would have compelled agencies to disclose requested documents, allowing them to withhold information only when they can show there is foreseeable harm in doing so.

The rule was a no-brainer. In fact, as Trevor Timm, executive director of the Freedom of the Press Foundation, noted, it would have simply codified language already present in the Department of Justice’s FOIA policy (PDF), so it is baffling that the DOJ would suddenly object to its own rules. The bill even had virtually unanimous support in the Senate and the House — a seemingly impossible achievement from the least productive Congress in modern history. But after months of pressure from the Obama administration and shadowy banking interests, House Speaker John Boehner simply chose not to bring the bill up for vote in December, effectively killing it.

What those in power refuse to consider is that the culture of leaks they complain about is simply a society’s moral response to a culture of institutional secrecy.

Improving the FOIA process is essential because it is an incredibly effective transparency tool in the right hands. Recent successful FOIA campaigns have revealed which police departments and federal agencies are flying drones over American soil, as well as details about the military weapons, vehicles and equipment the Department of Defense has been giving to local police through its now infamous 1033 program.

But these successes come at the end of a long and often costly chain of correspondence, appeals and lawsuits. And even when public records laws work as intended, we’ve seen authorities go to appalling lengths to delay, conceal and sabotage the transparency process.

One of last year’s strangest examples came out of Sarasota, Florida, where the American Civil Liberties Union requested information on police use of surveillance devices known as Stingrays. Part of a family of devices called IMSI catchers or cell site simulators, Stingrays are fake cellphone towers that track hundreds of phones, intercept calls and text messages and can even be mounted on planes. Previously, attempts to get information about Stingrays had been blocked because of nondisclosure agreements police signed with the Harris Corp., the Stingray manufacturer. But even though the ACLU successfully litigated the documents’ release, the U.S. Marshals’ Service stepped in at the last minute and physically seized the records. The judge then dismissed the lawsuit because the Sarasota police no longer had jurisdiction.

This is just one worrying result of secrecy becoming the government’s top priority. Under a process called parallel construction, police can use information on American citizens collected "incidentally" by the National Security Agency’s foreign surveillance dragnets as evidence in drug cases — as long as they fabricate narratives about how the evidence was acquired. Local prosecutors also seem to be keen on the policy of secrecy über alles: In Orange County, California, a district attorney recently decided that it was better to let accused murderers walk free than reveal how he improperly acquired evidence against them. So much for justifying secrecy to protect the public.

Make leaks unnecessary

Given this landscape of secrecy, it should come as no surprise that individuals might choose to act outside the law to pull back the curtain on state activities. The government likes to demonize whistleblowers such as John Kirakou, the former CIA officer currently imprisoned for speaking out about the use of brutal torture techniques detailed in the recent Senate report, and Jeremy Hammond, the hacktivist who stole documents revealing the surveillance of political activists by the U.S. intelligence contractor Stratfor. But what those in power refuse to consider is that the culture of leaks they complain about is simply a society’s moral response to a culture of institutional secrecy, a disturbing regime of silence and overclassification that has permeated all levels of government, justified by post-9/11 excess and shielded by inadequate transparency laws such as FOIA.

Congress should finish what it started and pass the FOIA Improvement Act in 2015. But the bill should be the first — not the last — step in ensuring transparency.

There are obviously legitimate reasons for governments to redact and withhold documents; even the anti-secrecy organization WikiLeaks agrees that some information can needlessly endanger lives if improperly disclosed. But if the government really wants to combat leaks, it must make them unnecessary. To do that, the FOIA process must be reformed — inverted, in fact — so that transparency is the default.

Janus Kopfstein is a journalist and researcher from New York City focused on contemporary themes of surveillance, technology, privacy and power. He is the author of “Lawful Intercept,” a semiregular newsletter of dystopian nonfiction.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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