The Harry S Truman Building, headquarters of the State Department. Photo by Flickr user Josh.
From the very first day of his presidency, Obama vowed his administration would be historically transparent.
Federal agencies, however, evidently missed this memo. According to an analysis of federal data conducted by The Associated Press in 2014, these agencies took longer than ever to answer requests for information during the Obama administration. In addition, they censored files or outright denied access to record requests made under the Freedom of Information Act. Among government agencies, the State Department has managed to stand out for its failures to promptly disclose information.
The most recent illustration of State’s reluctance to disclose information comes from journalists’ ongoing struggle to secure documents relating to a deal the Department made with defense contractor BAE Systems in 2011. The AP requested files on the BAE deal in August 2013 and, as of March 2015, had received only three documents in response. At that point, AP sued in an attempt to force the release of the requested material. Freedom of Information Act requests must receive a response within 20 business days, a deadline agencies regularly ignore.
The State Department estimates there are 13,000 pages of records involved in the request and that it needs still more time to coordinate with the Defense and Commerce Departments to determine what information is relevant to national security. Citing a Reagan-era executive order, officials also claimed that BAE was entitled to review the documents for release and raise objections to potential disclosures of “trade secrets.” State requested until October 17 to comply with the AP’s 2013 request.
Those 13,000 pages of documents have additional political heft, however, because they include some of the emails on Hillary Clinton’s now-infamous private server. They cannot, of course, include those she deleted on the grounds that they were personal, except for the several thousand later recovered by the FBI. But one reason the AP submitted its Freedom of Information Act request in 2013, “well in advance of the election,” was because the question of who made the final decision to approve the BAE deal could have ramifications in November. Clinton, who was secretary of state at the time, was certainly a potential answer to this question. And her role could prove a political problem, considering that BAE admitted to criminal wrongdoing the year prior to its arrangement with the State Department.
After more than two years of largely stonewalling the AP request, the State Department has requested a deadline just a few weeks before Clinton is expected to appear on the presidential ballot. Whether or not State is dragging its feet deliberately, the choice of date does not look good. U.S. District Court Judge Richard Leon denied State’s requested extension a few weeks ago, noting at the hearing, “We’re now reaching a point of mounting frustration that this is a project where State is running out the clock.”
Whether this is a case of incompetence or political maneuvering, the fact remains that journalists, not to mention everyday citizens, can expect any request for State Department records to arrive both redacted and late, if it arrives at all. The AP is not the only party to sue; Politico reports roughly 100 other Freedom of Information Act-related suits pending against the State Department. And while it is not the only arm of the administration to delay information disclosures, State’s record does stand out. AP analysis last year said State took seven times longer than the Justice Department or the CIA to respond to such requests, and 30 times longer than the Treasury Department.
Back in 2009, Obama instructed agencies to re-adopt the standard of presumption in favor of disclosure when responding to Freedom of Information Act requests. But as of early 2014, the National Security Archive FOIA Audit found that nearly half of all federal agencies had not updated their regulations to reflect this guidance, or even to reflect the amendments to the law that Congress passed in 2007.
This delay contributed not only to the current scuffle between the State Department and the AP, as well as the dozens of other lawsuits connected to Clinton’s email server, but to the delay or rejection of a variety of other Freedom of Information Act inquiries. Other blocked requests concern the NSA’s phone record collection, the disastrous launch of HealthCare.gov and the 2012 attack in Benghazi, among other incidents. The National Security Archive filed a suit as recently as 2013 seeking release of information about phone conversations held by Henry Kissinger.
In his inauguration speech, Obama said, “The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.” Yet as his second term approaches its conclusion, federal agencies continue to drag out requests in the evident hope that the little information they give up will come so late as to no longer matter.
Leon was blunt with government lawyers in the recent hearing about the AP’s request. “Tell your colleagues at the State Department … weekend trips to Nantucket should be off the table,” he said, emphasizing the necessity of a prompt response. But given the track record of not only the State Department, but of federal agencies generally, it is hard to blame the AP’s attorney for expressing skepticism that the case will resolve quickly.
The president’s inaugural promises have been honored more in the breach than in the observance. For him and his former secretary of state, actions speak louder than words. Voters will get their chance in November to show whether they have been listening.