Opinion

Opinion

The public deserves to see the Comey memos

Posted June 21

CNN, The New York Times and USA Today have filed Freedom of Information Act lawsuits in federal court to compel the FBI and the Department of Justice to release former FBI Director James Comey's memos on his conversations with President Donald Trump.

On May 16, 2017, CNN submitted an FOIA request to the FBI for notes or communications from James Comey regarding interactions with President Donald Trump between January 20, 2017, and May 10, 2017. On June 2, 2017, the Office of Information Policy directed the FBI to process the request "as quickly as practicable." Ten days later the FBI notified CNN that it was still "searching the FBI's indices for potentially responsive documents." They've still not provided the records.

USA Today submitted a similar FOIA request to the FBI on May 12, 2017. The FBI acknowledged the receipt and granted expedited processing on May 24. But since then, USA Today says it has heard nothing substantive from the FBI.

One day after CNN filed suit, the FBI formally denied CNN's request, citing the "law enforcement" exemption.

Isn't FOIA about "freedom of information" to the public? If that's the case, why does the FBI have to be sued before it looks for and provides information it's supposed to just turn over? That doesn't sound like a presumption of disclosure.

To promote government transparency, FOIA requires the FBI, and all federal agencies, to produce records to any person who requests them, unless the information requested falls within one of nine enumerated exemptions to the rule. In this case, the FBI is likely withholding records compiled for law enforcement purposes claiming their release "could reasonably be expected to interfere with law enforcement proceedings."

Those federal agencies who actually have to respond to FOIA requests and provide those records see it differently than the Supreme Court. These agencies like the DOJ and the FBI employ a dedicated staff that is very good at concluding one of the exemptions applies, and they excel at denying requests.

It's all about incentives. More denied requests translates to less work. Taking their time finding records to disclose also results in less work. That's why FOIA imposes a deadline: An agency must determine, within 20 working days of the request, whether it is going to comply with that request. If it delays responding more than 20 days, the requester is legally permitted to file in court -- a lawsuit asking a federal court to force a federal agency to comply with federal law.

In 1996, Congress passed the Electronic Freedom of Information Act Amendments, which added expedited processing of certain requests under FOIA. One of these qualifying situations applies when 1) the party requesting records is primarily engaged in disseminating information (i.e., a news organization) and 2) there's an urgency to inform the public about federal government activity. Then, an agency is obligated to process the request "as soon as practicable."

Sounds simple enough, right? Not to a governmental agency. To many agencies, "as soon as practicable" just means "we'll get to it when we get to it."

Agencies are aware that "as soon as practicable" gives them a lot of wiggle room under FOIA. In fact, the DOJ has argued in court that "as soon as practicable" should impose no concrete deadline at all, and as long as the DOJ says it is processing a request "as soon as practicable," the courts should leave the department alone.

Of course, the courts recognize that this convenient reading of FOIA would give the DOJ "carte blanche" to process expedited requests at its leisure, to drag its feet and "pay lip service" to expedited processing.

The courts have held that the DOJ fails to process an expedited request "as soon as practicable" when it violates that standard initial 20-day deadline. The FBI can't possibly argue that disclosure of the Comey memos is not practicable within a month or so. This request is not one of those crazy "needle in a haystack" FOIA requests that agencies frequently have to field. The Comey memos are finite in number and able to be located. The FBI has elected to fritter away time and resources resisting this request, instead of spending half the effort just turning them over by now.

What about that law enforcement exemption now claimed by the FBI? Comey himself testified that the records are not classified. President Barack Obama did sign an executive order allowing for the classification of national security information after it has been requested under FOIA. Plus, the exemption does not require a presently pending law enforcement proceeding, as long as an ongoing investigation is likely to lead to such proceedings. As broad as that exemption is, however, materials lose their protected status once they are publicly disclosed. The former FBI director himself testified at length about these documents. What's left to withhold?

Information that has not previously been disclosed to the public under proper authority may be classified.

It raises the question: Why do agencies like the DOJ or the FBI fight and delay FOIA requests and disclosures? The Supreme Court has observed that FOIA embodies a "general philosophy of full agency disclosure," and it has stressed that public awareness of government actions is "a structural necessity in a real democracy." What happened to that "philosophy of full agency disclosure"? The agency response would be: "Hey. We get a lot of these requests. We're busy." That's fine. But the I'm-too-busy-defense, for most of us, is not an excuse for not doing one's job.

In fact, telling the boss we're too busy to meet a deadline would get most of us fired. For agencies responding to FOIA requests, being too busy is business as usual. If the Comey memos don't fall under any legitimate exception to FOIA, they should be disclosed, and promptly. It's a matter of national importance, and they can't be that hard to find.

And, in fairness to the FBI in this case, they did, at least, waive the processing fee.

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