FOIA has become a tool to block government transparency

Is our right to know stronger than our federal government’s right to say “no?” Well, consider my experience in what I’ve come to learn is the Kafka-esque world of the Freedom of Information Act.

In April, I FOIA’d the SEC over its contentious and costly climate disclosure rule, asking the agency for records of 11 publicly-disclosed meetings involving its senior most officials; powerful legislators; and pro-climate rule private sector power players.

How’d the SEC respond?

First it sent a dozen form acknowledgment emails, revealing that each of the 11 interactions for which we sought records, would become its own individual request; a final request was created for our request that the SEC provide “all records of or relating to the processing of” the first 11 requests.

So one request became 12.

Before touching the first 11 of them, the SEC dealt with the twelfth. A FOIA officer indicated no processing records had been created for the first 11 requests, and that, 

“Therefore, we did not locate or identify any records responsive to your request.” 

So we asked if the SEC would ultimately provide process records, and confirm a schedule for producing the documents. We got no reply. Then in early June…weeks after the initial request, we received separate emails from three FOIA officers.

Two of them – each regarding a specific meeting about which we requested records – officials asked us to provide email addresses and/or domain names of all the non-SEC participants. A third email asked that we provide email information for every “individual and/or entity” listed in the original, now 12-part request – which would include, then, not only all non-SEC officials, but agency officers themselves. 

You’re telling me the SEC doesn’t have its own Chairman’s email address on file?

We told the SEC that legal counsel had said that it “should have the capability to search for names absent email addresses. Is this feasible?” we asked in an email. The SEC didn’t respond. As of today, the SEC hasn’t provided a single page of responsive records to our original request.

We’re not alone here. Senate Banking Committee Republicans would later seek information on this exact rule via their oversight powers, only to find themselves stonewalled, ironically arguing in a letter to Chairman Gensler, “A member of the public who submitted a Freedom of Information Act (FOIA) request would be entitled to receive more records from the SEC” that even a humble ordinary American “would be entitled to receive more records from the SEC” than the powerful senators. 

We seem to have proved FOIA isn’t so easy, a caveman can do it. Or a journalist for that matter. Empower Oversight is suing the Biden SEC over perceived FOIA intransigence, citing the “SEC’s pattern of bad faith negotiations on search terms and history of incomplete productions.”

Hans Bader, a lawyer and former Trump administration official, with whom we consulted about our FOIA requests, said he too has been asked by Biden agencies to supply the domain names of those identified, or see his FOIA requests cancelled outright.

This despite the fact, Bader told me, that “for years, I submitted FOIA requests to agencies seeking communications … without listing … email addresses or domain names, and agencies managed to produce responsive records perfectly well. …”

Reed Rubinstein of America First Legal, who helped me draft our FOIA request, told me agencies had for decades searched employee emails for individual names.

Now, he sees email info requests more often, “especially when the underlying issue is a matter of political concern. This suggests that the White House has imposed a new requirement to slow down or frustrate requestors.”

William D. Cohan, author of several New York Times bestselling books about Wall Street – most of which he says began with a FOIA request to a financial authority like the SEC –told me in reporting on FOIA that generally agencies “will try to narrow your request.” But he added, regardless “they will obfuscate, they will delay, they will blow through their self-imposed deadlines, and not even think twice.”

One expert told me agencies may be daring requesters to either satisfy their requirements, or drop the requests altogether, betting requestors won’t risk litigating. Fighting for transparency about what the government you pay for is doing in court can be very costly.

Cohan told me he once traded dozens of emails with the SEC over documents he sought regarding General Electric – the subject of his 2022 book, Power Failure. 

Flummoxed, he sued at considerable cost. The two sides settled, with the SEC agreeing to produce several hundred pages of documents per month for about a year. Unfortunately, Cohan said “they had so heavily redacted” the documents “that it was to render [them] useless” for purposes of his book. So the process itself might punish — a deterrent to those seeking information. 

FOIA, touted as a tool of transparency and accountability – celebrated on the left and right and rightfully so – also drives its proponents absolutely nuts, 

increasingly operating in practice as a tool of obfuscation that protects the powerful through arbitrary and inefficient administration – as requests pile up and the backlog explodes.