Policy

Eric Holder Congratulates Himself for Transparency Reforms That Never Happened

The Justice Department claims it "has demonstrated its historic commitments to transparency."

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If you visit the Justice Department's website right now, you'll see a link (pictured above) to "Accomplishments Under the Leadership of Attorney General Eric Holder." Buried on page 15 of the document, which was prepared in late October and published just after President Obama was reelected, is the claim that the Justice Department "has demonstrated its historic commitments to transparency." The Obama administration has broken those "historic commitments" many, many times since the early days of 2009, but you wouldn't know that from the DOJ's whitewashing of Holder's tenure. 

Let's start with the first claim: 

"Since 2009, the Department has released records in full or in part in more than 94 percent of the cases where records were processed for disclosure, and when records were released, they were released in full, with no information withheld, for more than 70 percent of such requests."

That 94 percent rate works only if you omit the tens of thousands of requests the DOJ does not "process for disclosure" each year. For example, the DOJ processed 63,992 requests in 2011, according to its annual FOIA report. It responded in full to 28,719 requests, and partially to 7,576 requests. The rest were rejected for reasons ranging from legitimate to murky. So what the DOJ is really saying is that it honored 94 percent of the requests it didn't reject outright. But really, it rejected 45 percent of the requests it received in 2011. 

The accomplishment memo makes claims that are impossible to verify, such as this one: "The Department also made more discretionary releases of information than the previous administration." There is no category for "discretionary release" in the annual FOIA report or on FOIA.gov. 

The memo also makes the relatively modest claim that "The Department has reduced the size of its FOIA backlogs under Attorney General Holder's leadership." Yet a former FOIA specialist in the DOJ said earlier this year that the department was grossly inflating the backlog math. 

The final transparency claim (and one should note that these are all with regard to FOIA, as if that single category represented the full extent of the government's transparency obligations) is this: 

Since the issuance of Attorney General Holder's new FOIA guidelines, the Department's Office of Information Policy, which is responsible for encouraging agency compliance with the FOIA, has issued government-wide guidance on a range of issues implementing practices that provide for greater transparency and a more effective FOIA administration across the government. 

About that: Earlier this month, The National Security Archives reported that "sixty-two out of ninety-nine government agencies have not updated their FOIA regulations since US Attorney General Eric Holder issued his March 19, 2009 FOIA memorandum." There is nothing to parse here. 

If you want to know what DOJ really accomplished on the transparency front under Eric Holder, here's a great list compiled by the National Security Archives in 2011: 

  • selective and abusive prosecutions using espionage laws against whistleblowers as ostensible "leakers" of classified information, with more "leaks" prosecutions in the last three years than all previous years combined, at a time when expert estimates of over-classification range from 50 to 90%;
  • persisting recycled legal arguments for greater secrecy throughout Justice's litigation posture, including specious arguments before the Supreme Court in 2011 in direct contradiction to President Obama's "presumption of openness";
  • retrograde proposed regulations that would allow the government to lie in court about the existence of records sought by FOIA requesters, and also prevent elementary and secondary school students – as well as bloggers and new media – from getting fee waivers, while narrowing multiple other FOIA provisions;
  • a mixed overall record on freedom of information with some positive signs (overall releases slightly up, roundtable meetings with requesters, the website foia.gov collating government-wide statistics) outweighed by backsliding in the key indicator of the most discretionary FOIA exemption, (b)(5) for "deliberative process," cited by Justice to withhold information a whopping 1,500 times in 2011 (up from 1,231 in 2010).