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DoD inspector general finds no political influence in FOIA requests

Political appointees have not “unduly influenced” Defense Department responses to freedom of information requests, an inspector general report announced Tuesday.

But the audit did discover the Department of Defense's (DoD) policies for handling those requests were outdated.

The report came in response to a June 2015 Senate Homeland Security Committee request to determine whether political appointees in executive departments and agencies had obstructed the release of information to the public through the 1966 Freedom of Information Act (FOIA).

A letter from Committee chairman Sen. Ron Johnson (R-Wisc.) said that during Hillary Clinton’s tenure as secretary of state, “her staff carefully reviewed and scrutinized politically sensitive documents requested under FOIA — directly affecting what documents or portions of documents were ultimately released to requestors.”

Johnson said such political staff scrutiny lead to “troubling” delays and raised questions about whether political staffers were “adversely affecting the quantity, quality and timeliness of information released through FOIA."

The inspectors general of the DoD and all executive-branch departments were asked to review whether political staffs were involved in FOIA requests and, if so, whether that involvement resulted in delays.

The Defense Department inspector general replied to Johnson in November 2015, and said there was a single instance of a “non-career official’s involvement” in a FOIA request, but it “did not result in any undue delay or the withholding of any documents.”

In the course of its investigation, however, the inspector general discovered the policies the Defense Department uses to respond to FOIA requests “do not reflect current FOIA requirements.”

The inspector general said a DoD regulation governing FOIA requests “had not been updated for 17 years,” though it had been supplemented three times through the use of “directive type memorandums” during that time.

None of the three memoranda were incorporated into formal DoD policies for handling FOIA requests as required.

The inspector general said “the lack of current and accurate FOIA policies is not in compliance” with DoD regulations.

The inspector general also found the DoD does not have procedures in place to handle “significant” releases of information through FOIA that may require the notification of DoD leadership, and approval of the DoD’s Transparency Office.

In 2009, the DoD’s chief FOIA officer issued informal guidance for handling significant information releases in what the inspector general said was “an e-mail attachment without letterhead, signature approval or evidence of [deputy chief management officer] authorization or approval.”

The email defined “significant” FOIA requests were those involving “the current administration, previous administrations, Members of Congress (correspondence, travel or otherwise), or current or previous DoD leadership.”

The inspector general said the informal guidelines should have been added to the Defense Department’s formal guidelines "sometime in the past six years.”

David Tillotson, the DoD’s assistant deputy chief management officer, agreed with most of the inspector general’s findings, and said the Department’s FOIA policies would be brought up to date to reflect current federal law.

In the DoD’s 2016 annual report on freedom-of-information compliance, Peter Levine, the deputy chief management officer, said the DoD’s 32 FOIA offices had processed “over 50,000 FOIA requests” in fiscal year 2015, and “over 91 percent of all received requests were processed in less than 100 days.”

Republicans have long criticized the Obama administration for exerting political influence to either block or delay FOIA requests.

A January 2016 staff report from the House Committee on Government Oversight and Reform said the executive branch “encourages unlawful presumption in favor of secrecy when responding to Freedom of Information Act requests.”

The House committee report cited a memorandum from White House Counsel Gregory Craig that said, “executive agencies should consult the White House Counsel’s Office on all document requests that involve documents with White House equities.”

Craig wrote that agencies should consult his office “with respect to all types of document requests, including Congressional committee requests, GAO requests, judicial subpoenas, and FOIA requests.”

“At a June 2015 hearing,” the House Committee report said, “FOIA officers from multiple agencies confirmed that this policy requiring White House review of certain documents remains in effect."