In the latest episode of the FOIA follies, we recently received a bizarre letter letter from the U.S. State Department asking us whether we are “still interested” in receiving a response to one of several of our requests for State Department records that have each gone unanswered for more than five years.
The Department of Homeland Security is the leader in improper denial of FOIA requests and wrongful withholding and redaction of records, and has the largest backlog of unanswered requests. The State Department typically practices a different strategy of denial by delay, and has most of the oldest unanswered requests of any Federal department. A five-year wait for an answer from the State Department to a simple FOIA request is routine, although clearly illegal.
The latest letter we got from the State Department threatens to “close” one of our cases and take no further action on our request — in flagrant violation of the FOIA statute — unless we respond by fax (who still has a fax machine these days?) or snail-mail to confirm our continued interest in having the State Department fulfill its legal obligation to provide us with the records we’ve requested, including those about what happened to our complaints of human rights violations and the supplemental “long form” some passport applicants are asked to fill out, among other issues.
We’ve written back to the State Department (by snail-mail, since their letter included no phone number or email address) to tell them that yes, we really do want them to release the records we asked for five years ago — as they should know, since we already formally appealed their failure to answer our request within the time limit set by the law. (In response, they said they wouldn’t accept any administrative appeal until they answered our original request, making it impossible to challenge an illegal delay without filing a Federal lawsuit.) We’ve been making formal written requests at least annually since then for updates on the status of our requests and when the State Department estimates it will answer. (Each year, they set their estimated response dates back another year.) In the meantime, we made additional FOIA requests to the State Department on other subjects in 2014 and 2015. We have yet to actually get an answer from the State Department to any of our FOIA requests, regardless of how long ago we made them.
The Freedom Of Information Act does not require periodic expressions of continued interest in receiving late responses. But even though it isn’t required, we have provided repeated, explicit written expressions of continued interest in each of our requests. It would make no sense to allow a government agency to use the fact that it hasn’t responded to a request for government records within the legal deadline as an excuse never to respond at all.
In response to complaints from numerous advocates for government transparency, both the Department of Justice (OIP) and the FOIA ombudsman’s office (OGIS) of the National Archives and Records Administration have recently issued guidelines for the use of “still interested?” letters, if they are used at all. In May 2016, OGIS wrote to the State Department urge it to implement the OGIS recommendations regarding “still interested?” letters to FOIA requesters.
The State Department’s Chief FOIA Officer has claimed, both in her most recent annual report in March 2016 and in her response to OGIS in May 2016, that “we can assure you that DOJ guidance and OGIS recommendations are being thoroughly followed”. As we discuss in our reply to the State Department , which we have also sent to OGIS, the “still interested?” letter we received makes clear that this isn’t true.
“Freedom of information” means nothing if government agencies can, with impunity, ignore the law. A government agency’s own delay in complying with the law shouldn’t be an excuse never to comply at all.