Department of Justice Official Uses Sunshine Week Event to Spread Misinformation about FOIA Processing
At a recent Sunshine Week1 event, a Department of Justice spokesperson claimed that FOIA applicants are now quicker to litigate, then blamed overly-litigious requesters for straining the workloads of FOIA professionals and bogging down ordinary citizens’ FOIA requests. Principal Deputy Associate Attorney General Claire Murray stated:
“[T]he work of government FOIA professionals has become even more challenging in the past few years. … [A]n increase in nearly immediate litigation brought by some savvy frequent requesters strains our FOIA officials in their efforts to respond to every request in a timely way. Our FOIA professionals must be commended for redoubling their efforts to serve ordinary citizens while litigation on the part of the well-funded pushes ordinary citizens to the end of the queue.”
TRAC finds the underlying claim to be unsubstantiated and counterfactual. In TRAC’s recent empirical study comparing FOIA lawsuits in 2015 and 2019, TRAC found that not only were requesters not jumping into court immediately, requesters were actually waiting on average six months—a full month longer than they had five years ago—before filing a FOIA lawsuit. The statute provides that agencies need to respond within 20 business days. Additionally, the study documented that the increase in FOIA lawsuits over the five-year period was due to FOIA officials’ failure to respond to requests in a timely manner as required by law.
Equally concerning is how the unsubstantiated and counterfactual claim was used to sow unnecessary division between, on the one hand, citizens who seek remedy in court when the government fails to comply with the law, and, on the other, government staff and “ordinary citizens.” The fact that FOIA requesters are waiting longer to file lawsuits when the government fails to keep its end of the bargain suggests that requesters would, in fact, prefer to work with the government to avoid the expensive and lengthy process of litigation.
For example, just one day prior to Murray’s statement above, TRAC filed suit against the Office of Information Policy (OIP)—the office responsible for overseeing FOIA compliance – because the OIP itself refused to fulfill a basic FOIA requirement of E-FOIA. OIP claimed it was under no legal obligation to search its own electronic database which the OIP admitted it routinely did in the past. TRAC only filed suit after being repeatedly rebuffed when it sought to discuss the matter and received no response to its administrative appeal. As one of the litigants that Murray perhaps sought to disparage, TRAC would strongly prefer the government fulfill its routine FOIA obligations for the collective benefit of the governments’ FOIA professionals, ordinary citizens, and TRAC.
Principal Deputy Associate Attorney General Claire Murray oversees the Office of Information Policy. Because of the important role that the OIP plays, it is incumbent on her to speak truthfully about FOIA practices. As we celebrate Sunshine Week, one would hope public statements about FOIA practices are amply supported by the evidence, particularly statements that cast aspersions upon groups of FOIA requesters and sow unnecessary division between members of the public and between the public and government professionals.
TRAC has lodged a FOIA request with OIP seeking any and all evidence in the agency’s possession that provide support for the factual assertions contained in Murray’s statement that is quoted above.
- “Since 2005 Sunshine Week occurs in mid-March, coinciding with President James Madison’s birthday, to focus attention on the importance of public access to government records. While spearheaded by news organizations, many groups including nonprofits, libraries, schools and the government itself participate in a variety of ways to highlight the importance of government openness.” More information can be found at http://sunshineweek.org/.
