Battling Government Secrecy Through the Open Records Process
An Interview with Chris Farrell, Director of Investigations
JW VERDICT: First off, what is the Freedom of Information Act (FOIA)?
CHRIS FARRELL, JW DIRECTOR OF INVESTIGATIONS: FOIA is an open records law that allows average everyday citizens, through public interest groups like Judicial Watch, to gain access to government records, documents, and all forms of recorded information. The purpose is to help American citizens get an idea of what their government is up to, what it does, and how it operates.
JW VERDICT: Why is FOIA instrumental to the work that we do here at Judicial Watch?
FARRELL: It is critical for what we do because it allows us to ask difficult, annoying, awkward, penetrating questions of the government -- questions that various government agencies would rather not have asked, for the most part. Then, it compels the government to produce those documents. In cases where the government refuses to obey the law or they stonewall or footdrag in producing documents, Judicial Watch goes to court and sues the offending agency to have the court compel the documents to be released. FOIA allows for a clear window into the operations of government so that there is accountability to the American people.
JW VERDICT: What are some of Judicial Watch’s most significant open records victories?
FARRELL: We’re very fortunate to have some very significant victories in this field, for example: There is the Commerce Department case – proving the Clinton administration’s unlawful sale of trade mission seats as a means of raising illegal campaign cash; Uncovering the sale of missile and satellite technology to China for Clinton campaign cash – known as “Chinagate;” Records detailing the targeting of conservative organizations for audits by the IRS; Documenting the dangers to women posed by the abortion drug RU-486; Uncovering the real cost calculations of the Medicare Prescription Drug Benefit Program and providing them to Congress when the Department of Health and Human Services would not; Exposing the FBI’s “kid gloves” escort duty for Saudi royals and bin Laden family members as they fled the country on specially-authorized charter flights within days of 9/11; Revealing the White House approved gag order to Border Patrol agents forbidding them from telling the truth about spikes in illegal immigration resulting from the Bush amnesty plan. The list goes on and on. . .
JW VERDICT: How long does it typically take for the government to fulfill a FOIA request?
FARRELL: There are cases where we have made what is called a “compelling need argument,” where you say that the subject matter of the request is urgent. It is rare that you meet the “life or limb” qualification, but there are cases when it is a compelling, breaking news story. For example, in the days following the 9/11 attacks, when we were filing FOIA requests in the fall of 2001, we could use a lot of compelling language because 9/11 was a huge attack on the United States and the American public had a right to know what was happening. This, of course, is the favorable extreme. In such a case we may get documents in a matter of weeks, probably the earliest would be three to four weeks. On the other hand, the other extreme is that we sometimes receive documents six, seven, eight years after our initial request, and only then after lengthy and costly litigation.
JW VERDICT: Is there any agency or type of information that is exempt from FOIA requirements?
FARRELL: Yes. Most importantly, the courts have found repeatedly over the last few years that the Office of the President, the Office of the Vice President and the White House office itself, is completely exempt from FOIA. If you try to “FOIA” President Bush about some meeting or some activity he is engaged in, the President is not subject to FOIA. This is pretty important and a lot of people do not realize it. You also cannot “FOIA” Congress, or your Congressman. What FOIA really focuses on are government agencies, such as Defense, Commerce, Energy, and all of the so-called “alphabet soup” agencies, such as the Environmental Protection Agency (EPA) and the Central Intelligence Agency (CIA). There are also categories of information that are considered exceptions. The government, for example, can withhold information where there is a national security interest. There are also exemptions for privacy, and for what is called “deliberative process,” which includes the give-and-take between government agencies or between government officials.
JW VERDICT: What are some of the toughest FOIA requests made by Judicial Watch?
FARRELL: Judicial Watch’s Clinton pardon investigation comes to mind, where we fought for four years in court to get a hold of the Clinton pardon documents. We won at the district court level; we won again at the appeals court level, but the Department of Justice has defied the appellate court in the sense that they produced the documents we asked for, but they were completely redacted (or blacked out). So they gave us 915 pages of blacked out documents, technically cooperating with what the appellate court order, but obviously defying the appellate court in how they carried out the demands. I think this also shows the complicity between Presidential administrations where one administration will cover for the other because no one really wants to be embarrassed. This is not conspiracy theory stuff, it is just hardball politics. Nobody wants to be exposed so they cover for each other all the time.
JW VERDICT: With that said, do see any problems with FOIA as it stands now?
FARRELL: Yes, the open records process has been neutered by the Bush administration. Frankly, the Bush administration is in a realm of its own when it comes to secrecy. If there is a way not to give you a document, they will use it or find it. So, we are very grateful for anything that we can uncover and we make the most of it.
JW VERDICT: Do other countries around the world have a FOIA-like clause, or is America unique?
FARRELL: Some do. England just enacted their own FOIA law which is remarkably like ours and they did so in January. Canada does. Germany does. So there are a few other modern, western democracies or republics that, in one form or another, have an open records law of some type. For the most part, however, the rest of the world does not. We had a group from French-speaking African countries visit Judicial Watch headquarters recently, and when we told them what Judicial Watch does, one gentleman laughed and said that if he did what we did in his country, he would be killed. Unfortunately, that was not the first time I had heard that sentiment expressed.
