Agencies are made up of unelected bureaucrats who are not directly accountable to the public. One way we keep them transparent and accountable is via the Freedom of Information Act (FOIA). It’s a crucial process in keeping us free of an overly intrusive government.
When the government delays or ignores FOIA requests, the agencies become opaque and unanswerable to any but the elite. It allows a dictatorial administration to use agencies to control the public.
The White House, thanks to a 2009 presidential memo injects itself into every FOIA request. This isn’t something the public should allow.
A court decision handed down Monday shows us how dangerous this can actually be.
Landmark Legal Foundation requested documents from the EPA in an attempt to discover whether or not politically damaging regulations were postponed until after the election. After being ignored for months, they filed suit and asked the court to apply sanctions.
The court didn’t apply sanctions because the judge did not believe that Landmark proved the EPA had willful intent.
The court did however lambast the agency. The judge found that the agency was clumsy, shoddy, unapologetic, negligent or indifferent, lacking respect for the FOIA process, deceitful, and possibly worse.
The EPA used the incompetence defense to weasel out of providing documents that the law requires them to provide.
The judge stated that the EPA either “intentionally sought to evade Landmark’s lawful FOIA request so the agency could destroy responsive documents” or they were apathetic and careless.
Landmark had requested any and all records identifying the names of individuals, groups, and organizations outside the EPA who have had communications with the EPA relating to all proposed rules and regulations finalized between January 1 2012 and August 17 2012.
After 30 months of delaying, ignoring and outright lying, Landmark still never received all the documents they were looking for, especially not the most critical ones.
Former head Lisa Jackson who held an account under the name of her dog Richard Windsor was not sent a notice directly and that became an excuse for delays in receiving information from her secret dog account.
As it turned out, information from her dog’s account was never released.
In November, after the presidential election, an administrator said he searched the Windsor account and found no responsive documents.
As it happened, there was no evidence anyone searched the account. Landmark presented evidence the account was used regularly for work correspondence with Cass Sunstein.
Lisa Jackson’s testimony was also suspect, her email accounts were never reviewed and her blackberry account was erased when she resigned.
All the EPA had to do, as required by law, was to gather the information and copy it.
The Court stated that it was obvious to them that “the EPA has once again, fumbled its way through its legally unambiguous FOIA obligations.”
Documents were lost and an EPA representative said she didn’t know what she did with them. The lost documents were “responsive” by the EPA’s admission.
Landmark did not prove the agency acted in bad faith according to this judge though there was “reasonable suspicion” their actions involved “wrongdoing.”
Files were destroyed, information was not shared, action was delayed, and the EPA lied in declarations.
If an individual or group is on the other end of an out-of-control government agency, it’s absolutely crucial that the protection of the Freedom of Information Act remain a viable source. It isn’t right now and we can’t count on the courts to hold anyone accountable.
With the release of a secret August 15, 2009 memo, the public became aware of the fact that the White House gave itself the power to censor any FOIA requests that might embarrass the administration. It has slowed or nixed any information coming from all Federal agencies and it is setting a dangerous precedent. It’s one more lost freedom.
This simple memo did it:
The president claimed an executive privilege he did not have.
This rule established in the memo has enabled the White House to track in real time who is asking for derogatory information about the Obama administration, workers said.
Anything that could embarrass the administration is interpreted by agencies as requiring extra review.
The White House has no right to inject itself into FOIA requests and, as a consequence, it allows the administration to obstruct justice in congressional investigations.
The White House claims everything is “White House equities”. It gives White House incredible power. Watch the video explaining White House equities at The Washington Times.