By Fred Lucas
A political review of open records requests smacks of "Nixonian" tactics by the Department of Homeland Security, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) said Thursday.
Two investigations found that Freedom of Information Act requests sent to the DHS were reviewed by Obama administration political appointees.
"Through the course of an eight-month investigation, the committee has learned that political staff under the DHS Secretary Janet Napolitano have corrupted the agency's FOIA compliance procedures, exerted unlawful political pressure, on FOIA compliance officers, and undermined the federal government's accountability to the American people," Issa said.
"These events have nurtured a fragile – and at times hostile – work environment that does not serve to fulfill the department's primary mission to secure the nation from the many threats we face," he added.
The department's Office of Inspector General found that many records requests were filtered through Homeland Security Secretary Janet Napolitano's office.
However, DHS general counsel attacked the House oversight report as biased, pointing out that the IG report never alleged direct wrongdoing.
"My initial reaction was one of concern because as you indicate these are very serious allegations," DHS General Counsel Ivan Fong told the committee. "I take very seriously, as I should, any allegation of wrongdoing by my staff. On further examination, my concern frankly turned into indignation because I believe the report paints an unfair and irresponsible portrait of some people and events. The report reads more like an advocacy piece rather than a sober, substantive, dispassionate investigative report."
The investigations found that information requesters were identified by party affiliation in some cases. During the hearing, Mary Ellen Callahan, chief FOIA officer and chief privacy officer for DHS, could not answer why.
Callahan said this is only the case with members of Congress.
"According to our weekly report, we are supposed to indicate who is a Democrat and who is a Republican," Callahan told the committee. "I think that is how members of Congress are addressed. I don't know why, but career staff added that in 2006."
The House report found that by the end of 2009, "copies of all significant FOIA requests were required to be forwarded to the Secretary's political staff for review. The career staff in the FOIA Office was not permitted to release responses to these requests without approval from political staff."
The House investigation further found "original versions of documents that were heavily redacted before being released to the Associated Press show the Office of General Counsel relied on exception (b)(5) – normally meant to protect pre-decisional records – to prevent the release of embarrassing records."
The report also said that the secretary's office stopped using e-mail in the second quarter of 2010, and instead contacted their career staff by phone.
The report from DHS Acting Inspector General Charles Edwards did not allege corruption, but did say the department must make changes.
"We also determined that the Office of the Secretary has had unprecedented involvement in the Freedom of Information Act process beginning in 2009," the IG report said. "For several hundred requests deemed significant, components were required to provide for headquarters review all materials they intended to release."
After DHS issued a report in 2009 about "right wing extremist groups," the secretary's office communicated its concern to the DHS FOIA office, according to the IG report. The secretary's office asked, "Have we actually turned over any documents at this point?" and later asked the FOIA office for a list of all 33 organizations that requested the right wing extremist report.
The IG report also says, "Potentially embarrassing wording was redacted in other cases as well. In November 2009, a senior DHS official suggested limitations on the release of particular requests that a component was processing."
Rep. Gerald Connelly (D-Va.) insisted that there was nothing wrong with the secretary's office reviewing FOIA requests.
"The agency leadership simply wanted to know more about it. This actually represents laudable agency coordination, and a notable deconstruction of the usual bureaucratic stovepipes. If we assume FOIA requests can serve as a proxy for public interest in certain issues on which an agency is working, then agency knowledge about those requests means that the agency can be more responsive to the public it serves," he said.
The DHS has taken unprecedented measures, John Verdi, director of open government for the watchdog group Electronic Privacy Information Center.
"We are not aware of any other program that has singled out FOIA requests based on politically sensitive content or the identity of the requestor," Verdi told the committee. "Political review delays the release of records and raises the specter of wrongful performance."
He further said that "federal law simply does not allow agencies to select" what requests to respond to based on political considerations.
Edwards, the inspector general, said his office had not determined that DHS has done anything illegal. But, he stressed much improvement needs to be made.
Callahan said the department has decreased its backlog of records under the Obama administration. "Two years ago, the department faced a backlog of more than 74,000 FOIA requests," Callahan told the committee. "Under this administration, we have reduced the backlog by 84 percent, or more than 63,000 requests."
However, Republicans on the committee pointed out that it was the Bush administration that hired a private contractor for $7.6 million to help relieve the department's FOIA backlog. Further, the approximately 30,000 FOIA requests were shifted to the State Department.
