by Matthew Hardin
FME Law Counsel
There’s an old legal maxim that justice delayed is justice denied. In E&E Legal’s recent efforts to promote transparency and accountability, we have found that maxim rings true in the context of the Freedom of Information Act, as politicians and bureaucrats delay releasing records to which the public is entitled. While federal law dictates that most FOIA requests must be fulfilled within twenty days, E&E Legal routinely encounters agencies that delay complying with the law for months – or even years – on end.
In ongoing litigation with the State Department regarding a FOIA request E&E Legal submitted in early 2015 (yes, the same agency that is dealing with former Secretary of State Hillary Clinton’s e-mails), the government continues to release dozens of records on a monthly basis, with no end in sight. The request related to records generated by State Department employees in anticipation of the administration’s involvement in the Paris climate talks late last year.
Remarkably, the State Department has not even estimated when it expects to complete production of the remaining records regarding an issue the same agency declares is the greatest threat facing the world today. While the State Department, like many other agencies, blames overwork and limited staff for the delay, the delay itself hampered the public’s ability to participate meaningfully in the debate about climate change and the negotiations in Paris. If the delay continues, as seems likely, the administration may be able to ensure that the public remains in the dark about how it conducted its “climate diplomacy” until the next president takes office, which is precisely what their cynical strategy appears to be.
Unfortunately, the State Department is not the only federal agency that delays in releasing records which shed light on the actions of the government. In July of 2014, E&E Legal submitted a request to the U.S. Geological survey, which related to records generated by their employees in correspondence carried on behind the scenes with various environmental groups. The Geological Survey didn’t provide responsive documents until November of 2015, and even then, extensively redacted the records it provided. E&E Legal appealed these withholdings to the Solicitor General of the Department of the Interior, who has jurisdiction over the Geological Survey. Remarkably, as of this writing in February 2016, the Solicitor General still has not ruled on E&E Legal’s appeal. E&E Legal continues to fight for these records nearly two years after initially requesting them.
At the state level, E&E Legal has noticed this same troubling trend. Wyoming is among the worst offenders: there, E&E Legal submitted a request for records under state law in June of 2015. As of this writing, Wyoming has yet to provide either the records we requested, or any estimate for when those records will become available. The records at issue in that request related to self-bonding requirements for various mining operations. Since the records request was filed, one mining operation has already been forced into bankruptcy, with media reports citing Wyoming’s bonding requirements as among the causes.
Another example of delays at the state level frustrating the public’s right to educate itself about the operations of government can be found in Illinois. There, E&E Legal filed a request for records held by the Governor’s Office. After the Governor’s Office denied the request in part, E&E Legal filed an administrative appeal with the Public Access Counselor. The Governor’s Office missed its deadline to respond to E&E Legal’’s appeal by several weeks, and E&E Legal still awaits a final decision regarding whether more records will be released.
In another disturbing trend, E&E Legal has noticed officials in at least two states failed to produce records under the relevant provisions of state sunshine laws, only later to provide records when E&E Legal produced a subpoena for those same records. While penalties for failure to comply with state open records laws are sometimes lax or difficult to enforce, subpoenas carry the full power of the court to compel compliance. In Kentucky, E&E Legal obtained several hundred pages of records after a subpoena was issued. E&E Legal recently obtained a similar result in ongoing litigation in Virginia, although those records remain sealed until a judge can review them for release to the public.
A disturbing trend in all of these cases is the willingness of bureaucrats to use delay to frustrate the law. While records will eventually be provided – often after E&E Legal and its team of attorneys has spent precious time on litigation, the records are provided too late to impact the public debate. Backed with substantial legal resources, many agencies appear to be thumbing their noses at legitimate records requests.
Records that the public could have used to decide whether this administration was protecting American interests in the Paris climate talks will now be released only months or even years after those talks have concluded. Records that Wyoming citizens could have used to decide whether the state was fairly enforcing its mining laws will now be released only after at least one company has been forced into bankruptcy, with hundreds of workers added to the unemployment rolls. If transparency laws are to be effective in empowering the public, government must release those records quickly enough for the public to have a say in crucial decisions, and not sit on them.