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Obama Has Turned FOIA on Its Head, Creating More Secrecy and Higher Costs | Commentary

The Obama administration began its first term in office with the pledge of being more transparent than other administrations. Sadly, the administration hasn’t fulfilled its pledge and the growing lack of transparency is costing American taxpayers a significant amount of money.

A simple solution is to release more government documents to the public and stop paying contractors to review them unnecessarily. Congress should intervene for both policy and budgetary reasons.

President Barack Obama in January 2009 issued a Freedom of Information Act memorandum stating that “all agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.” This guidance is in addition to the original 1966 law that first granted individuals the right to review government documents.

Agencies aren’t following the president’s FOIA guidance or the law. Instead, they are telling people to “FOIA it” when they don’t want to share information.

I recently contacted the Maritime Administration, an agency I used to work for, to get a copy of a Memorandum of Understanding between the agency and another federal entity. The document used to be on the agency website and I couldn’t find it. My solution was to send a simple email asking for the new location of the MOU. The MARAD FOIA office sent me an official response stating that the agency does not typically publish MOUs to which it is a party on is website and that I should FOIA the document if I wanted to receive it.

The MARAD FOIA office’s response is inaccurate. As MARAD chief counsel during Obama’s first term, I put MOUs and similar government documents on the agency’s website on a regular basis. Most government documents aren’t classified. The public has a right to see the documents and learn how government actions are affecting them or their businesses.

I also wanted to cut down on labor and administrative costs. When an individual or company submits a FOIA request, government representatives must find the requested documents and review them, and the requestor must pay a filing fee.

One of the reasons Obama issued his 2009 decree was to cut down on the significant FOIA backlog that existed within the administration. I hired FOIA contractors to help MARAD employees fix the agency’s problem. In 2012, the average time to review MARAD FOIAs was 242 days. The oldest review time was 878 days — more than two years! More resources were clearly needed to fix the daunting problem.

I wasn’t the only chief counsel to hire FOIA contractors. According to a 2012 Bloomberg article, the government has awarded 250 FOIA-related contracts since fiscal 2009. These contracts cost taxpayer dollars and they aren’t supposed to be permanent; rather, contractors are supposed to fix temporary problems. Telling the public to keep FOIAing documents only increases the need to keep hiring contractors.

Refusing to share information also increases public distrust of the federal government and raises questions as to why its actions are non-transparent. The departments of Defense and Homeland Security publish MOUs on their websites. The entities are responsible for our national security. MARAD is responsible for promoting the U.S. maritime industry. Surely, maritime matters are less sensitive than those dealing with the military.

Congress should review the administration’s FOIA programs to determine if the Obama administration has cleared the backlog of FOIAs that it inherited in 2009. This review should include all departments and agencies. Each one should be required to provide information regarding their FOIA budgets going back at least 10 years, including the money they have spent on private FOIA contractors.

These departments and agencies should also be required to justify any existing FOIA requests that are more than six months old if they have hired contractors to fix the problem.

The Obama administration should release more documents in a timely manner. This voluntary release will decrease the number of FOIAs it receives and limit the amount of money spent on costly contractors. The savings gained from this simple change can be used for other purposes such as the salaries of furloughed employees or the national debt. Given the current budget crisis, the administration should support ways to cut unnecessary costs instead of increasing them.

K. Denise Rucker Krepp is a former chief counsel of the U.S. Maritime Administration in the Obama administration and a former staff member of the House Homeland Security Committee. She is currently a private consultant and academic.

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