Oversight chief sees 'chilling effect' from White House memo on records

Greg Nash

An Obama administration memo has had a “chilling effect” on the government’s compliance with open records laws, the Republican chairman of the House Oversight Committee argued Tuesday.

 Launching a two-day hearing on the Freedom of Information Act (FOIA), Rep. Jason ChaffetzJason ChaffetzOvernight Energy: Obama signs chemical safety reform into law House caucus to focus on business in Latin America Freedom Caucus urges vote on impeaching IRS commissioner MORE (R-Utah) blasted an email that directs federal agencies to consult with President Obama’s general counsel following any document request that could involve the White House.

“If you’ve got the yahoos at the White House having to review every document that falls under FOIA,” Chaffetz said. “This is the heart of the backlog.”

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The memo, dated April 2009, applies to any documents that may have “White House equities.” Chaffetz suggested the memo is being used as an excuse to delay the release of documents. 

“No, no, no, don’t fulfill the FOIA request,” Chaffetz said of the memo. “Send it here to the White House. We have equities! The White House equities!”

Rep. Jim Jordan (R-Ohio) said the memo has made federal employees fearful of crossing the White House.

"If the White House general counsel tells all general counsels at every federal agency, 'Hey, hey, before you send anything, check with us,' of course they're going to redact it. They're scared to death," he said.

Democrats defended the administration’s compliance with FOIA, with Rep. Gerry ConnollyGerry ConnollyDemocrats stage protest during brief House session 3 rays of sunshine on Pentagon foreign aid Dem protest ignites debate about control of House cameras MORE (D-Va.) noting that the Reagan Administration sent out a similar directive.

“If it wasn’t right in the [Reagan] administration, it’s not right in the Obama administration,” Chaffetz replied.

“I don’t care who’s in the White House, it’s wrong, it’s wrong, it’s wrong. It has a chilling effect, it slows people down, it sends a signal to those who are on the front lines … ‘Don’t you give that that to The New York Times.’”

The White House and House Democrats pushed back at suggestions that the Obama administration has lowered the bar for FOIA responses, suggesting that Republican budget cuts are partly to blame.

“Is there any wonder why we have FOIA backlogs? The number of requests has been skyrocketing, but agency budgets have been slashed by draconian sequestration cuts — resulting in fewer staff to handle impossible workloads,” said Rep. Elijah Cummings (D-Md.), the ranking member of the House Oversight and Government Reform.

Earlier this year, an Associated Press audit found that the Obama administration had set a new record for censoring, delaying access or denying information requested under FOIA. 

By the end of 2014, the amount of unanswered FOIA requests had soared 55 percent over the previous year, to more than 200,000. The report noted that the staff handling requests fell 9 percent, by 375 employees, during the same period.

While Cummings praised FOIA as “the cornerstone of our open government laws,” he also said delays in the system need to be addressed. 

He has partnered with former Oversight Chair Darrell Issa (R-Calif.) to push FOIA reform legislation that would, in part, codify the White House’s earlier directive of increased transparency. 

The legislation, FOIA Oversight and Implementation Act, recently passed through the oversight panel and has 41 additional co-sponsors. 

Connolly in a statement decried the hearing as partisan, saying it appears “designed to provide a venue to attack the administration under the guise of conducting serious oversight.”

“Government transparency would be better served by Congress taking concrete, pragmatic action,” he said in his written statement, before urging the passage of the pending FOIA reform bill.

The White House also snapped back at criticisms of the FOIA compliance process, saying on Tuesday it was “justifiably proud” of its efforts to fulfill open records requests. 

Press secretary Josh Earnest said the administration has responded to 647,000 requests in the last fiscal year, while noting Congress is exempt from a similar burden.

“Those who are interested in advocating for transparency in government should advocate for Congress being subject to those kinds of transparency measures,” Earnest told reporters.

While most of the White House’s operations are exempt from FOIA, Earnest noted that their communications are subjected to an archive process under the Presidential Records Act.

“Certainly [there is] a much greater demonstration of a commitment to transparency than what Congress submits itself to,” Earnest said. “I think what we want is some kind of transparency in Congress.”

Jason Leopold, an investigative reporter at Vice News who testified as a witness, said during the hearing on Tuesday that FOIA offices have never cited budgetary constraints as a reason for delays or complications in fulfilling document requests.

"I've never heard of it impacting my ability to access records," he said, while noting that it's possible that it could have an effect.

— Jordan Fabian contributed.

 

— This post was updated on June 3.