The federal government cited Exemption 3 protections to withhold information at least 14,442 times in the last budget year, compared with at least 13,599 in the previous one.
Journalists have been among the most consistent users of FOIA requests. But the obstacles, and the time, money and people-power needed to surmount them, have shown signs of discouraging this constituency.
Trevor Timm of the EFF reports that the Associated Press looked at the administration's commitment to transparency in 2010 and concluded Obama was using FOIA exemptions to withhold information from requesters more than Bush did in his final year, despite receiving fewer overall requests.
Worse, more than a year after Obama and Holder's memos, a National Security Archive study found "less than one-third of the 90 federal agencies that process such FOIA requests have made significant changes in their procedures." Even FOIA requests on transparency were held up:
An Associated Press study concluded that the bottom line was that, one year into its promise of greater government transparency, the Obama administration was more often citing exceptions to the nation's open records law to withhold federal records even as the number of requests for information declined.
Obama's directive appears to have been widely ignored.Major agencies cited the "deliberative" exemption at least 70,779 times during the 2009 budget year, up from 47,395 times during President George W. Bush's final full budget year, according to annual reports filed by federal agencies. Obama was president for nine months in the 2009 period.
One of the frustrating realities about the FOIA process is the enormous backlog of requests government agencies have to contend with, which means many months or years could pass before a request is finally processed and a response received.. Court calendars jam-packed with FOIA cases are also having the effect of putting civil trials on hold, sometimes for years.
Much of the Obama administration's early effort seems to have been aimed at clearing out this backlog of old cases: The number of requests still waiting past deadlines spelled out in the open-records law fell from 124,019 in budget year 2008 to 67,764 at the end of the most recent budget year. There is no way to tell whether people whose cases were closed ultimately received the information they sought.
The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request.
The administration has stalled even over records about its own efforts to be more transparent. The AP is still waiting -- after months -- for records it requested about the White House's "Open Government Directive," rules it issued in December directing every agency to take immediate, specific steps to open their operations up to the public.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., was so concerned about what he called "exemption creep" that last year he successfully pressed for a new law that requires exemptions to be "clear and unambiguous."
Recently, Attorney General Eric Holder said the government is making progress. In a speech at the start of Sunshine Week, when news organizations promote open government and freedom of information, Holder noted that the Justice Department turned over all documents in information requests in more than 1,000 more cases than it had the previous year.
"Put simply, I asked that we make openness the default, not the exception," Holder said. "I'm pleased to report that the disturbing 2008 trend -- a reduction in this department's rate of disclosures -- has been completely reversed. While we aren't where we need to be just yet, we're certainly on the right path."
Scott Hodes, an attorney in private practice who specializes in FOIA litigation, was asked whether there was an effort to change, Hodes was blunt, saying that he believes DOJ attorneys handling FOIA cases don't consider the documents at the center of a FOIA denial case, and maintain a policy of always defending the cases.
"They will still pretty much defend a ham sandwich in a FOIA exemption case," Hodes told TRAC.
The reason for this, Hodes said, was because there was no backing for a change from higher up in the agency that provided the support or infrastructure for attorneys handling cases to decide not to defend a case.