PAY DIRT

Watchdogs Use FOIA as a ‘Weapon,’ Justice Department Complains

The memo acknowledges a salient fact: There are more people than ever taking it upon themselves to inform the general public about the activities of the U.S. government.

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The Department of Justice complained in early 2018 that nonprofit good-government groups were weaponizing federal open-records laws, according to a memo obtained, appropriately enough, through a Freedom of Information Act request.

“A host of government watchdog groups now essentially seek to use FOIA requests and related litigation as a weapon in the political and advocacy process,” reads the memo, authored by the DOJ’s civil division, which is charged with defending the government in FOIA lawsuits.

The memo was written in February 2018, and obtained by the open-records website Government Attic. Its tone suggests a DOJ office exasperated by the skyrocketing volume of FOIA requests and resulting strain on department resources.

The memo attributes that rise in FOIA activity to, in part, self-serving motives on the parts of those government watchdogs. “These advocacy groups raise their profile whenever they trumpet a new FOIA lawsuit they file against the federal government,” DOJ complained.

But the memo goes on to acknowledge another salient fact about the proliferation of FOIA requests: There are more people than ever taking it upon themselves to inform the general public about the activities of the U.S. government. And those are exactly the type of people that the FOIA law was written to empower.

“Historically, a requestor pays the costs an agency bears in responding to a FOIA request,” the memo explains. “There is, however, an exception for the press, and with the-rise of new media (bloggers, twitter users, etc.), many more people now claim this press exemption, which also encourages more, and far broader, requests.”

Some federal agencies have responded to this proliferation of amateur reporters and watchdogs by attempting to impose substantial new limits on FOIA requests. In late December, the Interior Department proposed a new rule limiting the number of people who can file FOIA requests per month and allowing the department to pre-emptively deny any request it deemed “unreasonably burdensome.” Critics called the regulation an attempt to stifle open-records requests.

Most observers agree that federal agencies largely lack the staffing and resources to effectively manage a rising FOIA caseload. Congress has requested additional resources for some agency FOIA offices to address that shortfall.

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