It's been more than a year since President Joe Biden took office, but his administration has yet to publish guidance to agencies on federal public record laws, a break from tradition that has frustrated transparency advocates.
This week, a coalition of transparency groups sent a second letter calling on the Justice Department to issue a memo on its interpretation of the Freedom of Information Act (FOIA), the groundbreaking 1966 law that, in theory, ensures public access to government records.
The coalition, which includes Open the Government, the American Civil Liberties Union, the Society of Professional Journalists, and Project on Government Oversight, among others, sent a similar letter last April to the Justice Department requesting that it issue a FOIA memorandum. It never received a response.
"Our hope was that the DOJ would address the government's troubling tendency toward less disclosure and the increasing challenges requesters are facing during the FOIA process," this week's letter said, noting the continuing rise in public records lawsuits against the federal government.
"By one measure of agency noncompliance with the FOIA, the number of active FOIA litigation cases, noncompliance is at a decade-long high even while requesters are waiting longer than ever to initiate litigation," the letter says. "We once again appeal to you to act on this critical matter."
Access to records from federal agencies is crucial not to just reporters, but advocacy groups, researchers, and concerned citizens. However, the federal government's frequent bad-faith compliance with the law and a steadily rising number of annual FOIA requests have led to swamped FOIA offices, large backlogs, processing delays, and court dockets clogged with lawsuits.
Syracuse University's Transactional Records Access Clearinghouse reported that at the end of FY 2020, the number of FOIA lawsuits pending in the federal district courts rose to 1,683, more than three and a half times the number of pending cases a decade ago.
Transparency advocates say they have been surprised by the Biden administration's failure to put out a memo or even acknowledge the issue. Although the Trump administration declined to do so, both Republican and Democrat administrations in recent decades have issued memos in their first year, either through the White House or the Justice Department, touting their commitment to transparency and setting expectations for how federal records requests will be handled.
"It has become routine for an incoming administration to provide a public statement of its goals for strengthening transparency and improving FOIA administration," Ryan Mulvey, policy counsel for the Americans for Prosperity Foundation, says. "That statement, whether it comes in the form of a presidential statement or an Attorney General memo, sets a formal tone. The government transparency community hasn't seen anything yet from President Biden. It's disappointing. FOIA is broken and needs reform; the President has the opportunity to be at the forefront of that effort."
For example, former President Barack Obama released a day-one memo on transparency (although his administration often failed to live up to its lofty rhetoric), and John Ashcroft issued a FOIA memo in the first year of the George W. Bush administration.
Advocates also say they simply haven't been able to find anyone in the White House who's working on transparency issues.
"There does not appear to be anyone in the White House counsel's office with transparency as part of their portfolio," says Anne Weismann, an outside counsel for several transparency groups and former counsel for Citizens for Responsibility and Ethics in Washington. "They just haven't seemed willing to engage on the issue, and that's been very frustrating."
The White House did not respond to a request for comment. The Justice Department declined to comment.