The WSJ's Thinly-Sourced FOIA Report Doesn't Add Up

A front-page Wall Street Journal report suggested that a top political appointee in Hillary Clinton's State Department improperly “blocked” documents sought under public records law. But even the article's anonymous sources don't support that allegation.

While career officials are supposed to make the final decisions on the release of documents sought under the Freedom of Information Act (FOIA), it is normal for political appointees to play a role in the process. As explained in a 2011 Inspector General report issued as part of an investigation into the role political appointees played in the FOIA processes of the Department of Homeland Security, both political and career officials “should undoubtedly ask questions and offer suggestions while a course of action is under consideration. This is the 'deliberative process' in which government employees must engage in order to make reasoned decisions. ” The report noted that it is “appropriate that there be internal debate among DHS employees about DHS programs, and FOIA processing is no exception.”

Echoing this understanding of how the FOIA process works, the Journal includes a State Department spokesman's comment that it is “entirely appropriate for certain Department personnel” to be consulted regarding FOIA requests, and a Clinton spokesman's statement that the focus of the article, former State Department chief of staff Cheryl Mills, “did not inappropriately interfere with the FOIA process.”

The Journal further cites FOIA expert Miriam Nisbet's statement that “the career people have to be the ones who make the final call.” But while the article insinuates otherwise, it never actually establishes that career FOIA officials did not make the final decisions on the FOIA requests in question. 

The article cites two cases in which a single anonymous source suggests that Mills wielded inappropriate influence over the FOIA process. But in neither case does the Journal actually demonstrate that Mills or her staff made the final decision to “block” the release of those documents. In fact, the article points out that some documents whose release had originally been opposed by Mills' office were released, undermining this suggestion.

The article places these allegations in the context of "[q]uestions about the transparency of Mrs. Clinton's State Department tenure" due to her use of a use of a private email account as secretary, stating that that private system “meant the department didn't have access to her emails when public requests to see them came in.” This claim ignores Clinton's statement that the “vast majority” of her “work emails went to government employees at their government addresses,” which would be subject to the standard protocols for preservation of such documents.

In the first case, the Journal cites an unnamed “person with knowledge of the situation” who claims that Mills “insisted on reviewing” documents related to the Keystone XL pipeline being prepared for release and “flagged as problematic a few that the department's records-law specialists felt obligated to release.” According to that single source, “The Keystone documents Ms. Mills objected to were all either held back or redacted.”  

The article does not establish that Mills made the final decisions with regard to those documents rather than career employees -- indeed, as the article notes, some of those documents she flagged were nonetheless released with redactions.

A former State Department official familiar with the Keystone XL review disputed the suggestion of undue pressure in a statement to Media Matters, saying, “My experience with the Keystone FOIA review was no different than other FOIA reviews. There was a process, and it was followed. There was of course intense press attention, which meant we would keep senior officials apprised of when documents would be released, but to suggest that anyone inappropriately inserted themselves in the process would be wrong.”  

The Journal also allows that single anonymous source to report that Mills “told a records specialist that if he released records she wanted held back, Mrs. Clinton's office wouldn't comply with any future document requests on any topic.” But the Journal does not establish how that source was aware of that conversation in the first place, leaving it unclear whether such an apparently damning claim is simply years-old hearsay.

The second case cited by the Journal as an example of Mills' supposedly improper influence deals with the claim from another “person familiar with State Department records releases” who alleges that “Ms. Mills's office sometimes objected to the release of records FOIA specialists thought ought to be handed over” with regard to documents related to speeches given by former President Bill Clinton.

But that source would not allege that Mills' office had the “final say” over the release of the documents, and acknowledged that while “some” of the flagged documents were withheld, others were redacted or released, again undermining the Journal's implication of wrongdoing.