A couple of months ago, J. Christian Adams put up the following breathless headline on the Pajamas Media blog: “Bombshell: Justice Department Only Selectively Complies with Freedom of Information Act (PJM Exclusive).” In the post, Adams claimed that the Obama Justice Department has “politicized compliance with the Freedom of Information Act. According to documents I have obtained, FOIA requests from liberals or politically connected civil rights groups are often given same day turn-around by the DOJ. But requests from conservatives or Republicans face long delays, if they are fulfilled at all.”
If anyone had asked us, we would have warned them not to take the bait without closely double-checking Adams' claims. After all, Adams is a long-time Republican activist who appears to be willing to promote any falsehood in order to attack President Obama's Justice Department. However, Republicans on the House Judiciary Committee did fall for Adams' claims, pressing DOJ on whether it has politicized FOIA responses.
As we've noted, Attorney General Eric Holder has already testified that he looked into the issues raised by Adams' blog post and “I can assure you there is no ideological component with regard to how we can respond to FOIA requests.” Now, the Justice Department has sent a detailed response to a letter from Judiciary Committee Chairman Lamar Smith (R-TX) answering Adams' claims, and the response shows that the “bombshell” Adams touted was actually a total dud.
It turns out that Adams' claims are based on falsehoods and apples-to-oranges comparisons. In fact, the letter shows that Adams even lied about the FOIA request made by his own organization, Pajamas Media, in his original post.
Adams claims that the Bush DOJ was able to fulfill a FOIA request from Boston Globe reporter Charlie Savage (apparently a liberal in Adams' mind) expeditiously, but a Pajamas Media request for “the exact same information from the DOJ that Charlie Savage requested in 2006 -- except for hires made in the Obama DOJ” was ignored.
The response to Smith's letter from DOJ explains, however, that the Boston Globe and Pajamas Media requests did not ask for “the exact same information” at all. Rather, the Globe request asked only for information on hiring at three sections of DOJ's civil rights division while Pajamas Media asked for “resumes from the entire Division, including all 12 sections as well as the Office of the Assistant Attorney General.”
The DOJ response to Smith adds that Pajamas Media was asking for information on “nearly seven times as many new hires as the 2006 request.” The DOJ response continues:
In accordance with the Division's usual protocol, the FOIA Office began processing that request immediately, sending an interim response the day after it was received. That process requires a time-consuming line-by-line review of the resumes before public release, consistent with our obligations to protect the privacy of attorney hires."
If Adams can't even be trusted to tell the truth about the FOIA request by his own organization, one might wonder how honest the rest of the post is.
Not very honest, as it turns out. The DOJ response points out a fundamental flaw in Adams' blog post: Adams was apparently comparing apples to oranges and hiding facts to paint the DOJ's responses to FOIA requests as politicized.
For entirely legitimate, non-political reasons, DOJ gave priority to some document requests, and it turns out that Adams was comparing these document requests to ones that did not receive priority. From the DOJ response:
The blog post referenced in your letter did not note the significant differences between, on the one hand, the Department's practice in responding to FOIA requests, and, on the other hand, its longstanding procedures for implementing Section 5 of the Voting Rights Act of 1965. In fact, the vast majority of the allegations cited in the blog post involved pending Section 5 submissions, which are not comparable to FOIA requests.
The DOJ response goes on to explain that Section 5 of the Voting Rights Act requires certain states and other jurisdictions to obtain approval for changes to electoral districts or voting rules from the Justice Department or a federal court before they go into effect; that DOJ is presumed to have approved those changes if the department does not object within 60 days of approval; and that DOJ procedures allow the public to comment on voting proposals submitted to DOJ for preclearance. The letter then explains:
The Voting Section prioritizes requests for Section 5 submission files when the jurisdiction's submission is pending before the Attorney General. ... This helps ensure that interested parties have a meaningful opportunity to receive and review a pending submission, and prepare and present a comment on that submission, as Congress provided in the Voting Rights Act of 1965, in time to be considered during the statutorily-mandated 60-day review period. If the request letter cites the FOIA but seeks pending Section 5 files, it is treated as a pending Section 5 request and processed accordingly. Because of these procedures, it is not meaningful to compare the handling of requests for pending Section 5 records with the handling of requests for closed Section 5 files or FOIA requests for other types of records.
The DOJ response also stated that when some of the very same people Adams identified as getting favorable FOIA treatment actually waited for months to receive a response when they were not requesting priority pending Section 5 submission files.
For instance, here's what Adams said about two requesters, Eugene Lee and Raul Arroyo-Mendoza:
The data in the FOIA logs I obtained reveal the priorities of the Civil Rights Division -- transparency for friends, stonewalls for the unfriendly. Those enjoying speedy compliance with their Freedom of Information Act requests include:
Eugene Lee of the Asian Pacific American Legal Center. Three day service.
Raul Arroyo-Mendoza of the Advancement Project. Same day service.
However, Lee also made a FOIA request that took approximately a half a year to fill, and Arroyo-Mendoza made one that took 18 months to fill. Here are the facts as related by DOJ:
[T]he blog post cited in your letter alleges that Eugene Lee received responses to his FOIA requests only three days after submitting them. The log that we provided with our letter to you of August 12, 2010 included three requests to the Division by Mr. Lee. Two of these three requests, however, were requests for copies of pending Section 5 submission files that were handled under the procedure described above. On the other hand, Mr. Lee's third request was for a closed Section 5 submission file (which was processed by the FOIA office due to the need for redactions). It did not receive the same priority as pending Section 5 requests, and took 172 days to fill. Another example is the request of Raul Arroyo-Mendoza, who is also alleged to have received “same day service.” Mr. Arroyo-Mendoza has made many requests over the last two years. While he received quick turnaround for requests relating to pending Section 5 submissions, he waited 18 months for the Division to complete processing on his request for a closed Section 5 submission file, which includes voluminous records and required redactions.
So there you have it. If it turns out that the people Adams identified as “liberals” or members of “politically-connected civil rights groups” had to wait for months or years to have FOIA requests fulfilled. So much for the charge that the DOJ politicized compliance with FOIA requests.