The ‘Freedom of Information’ Bureaucrats Have Our Number: Catch-22

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Commentary

Frustrated over what they see as the Securities and Exchange Commission’s stonewalling, Senate Republicans fired off a critical letter this summer to SEC Chairman Gary Gensler.

An ordinary American, they grumbled, “would be entitled to receive more records from the SEC” than the powerful Senate Banking Committee lawmakers had received to date to perform their duly ordained oversight of the agency.

If that sort of Everyman treatment were their goal, the Senators might want to reconsider. A RealClearInvestigations journalist had months earlier made virtually the same request—for records behind the financial regulator’s proposed landmark climate-disclosure rules—only to run into similar brick walls.

The experience, moreover, reveals cumbersome, little-publicized conditions placed on federal Freedom of Information Act requests in the ever-escalating conflict between the public’s right to know and the protective bureaucracy’s right to “no.”

The conditions—some surfacing in other cases and other agencies, and recounted to RCI by frequent FOIA requesters across the political spectrum—include the government’s breaking up of single initial requests into multiple, administrative nightmare-creating separate ones; and puzzling additional, duplicative, and formerly unnecessary requirements for email addresses and “domain names”—the latter being the @gmail.com or what have you at the end of email addresses often already requested.

Imposing the email-related demands on requesters, covering public and private parties mentioned in the FOIA requests, raises privacy and legal concerns, but also a practical question: When it comes to government employees, aren’t the feds well-positioned to pull identifying email information on their own?

Sidebar: The Road to FOIA Was Paved With Good Intentions

The bureaucratic curveballs come as the quantity of FOIA requests has exploded, whether because of the request-splitting practice, the growth of government, heightened political partisanship or, most likely, some combination of these and other factors. In 2021, FOIAs processed by the federal government rose to 838,688—continuing a trend interrupted only by the pandemic, before which requests increased 32 percent from 2012 to 2019. Along with the rise, the government’s backlog has swelled by 97 percent from 2012 to 2020.

And so, among the FOIA requesters who spoke to RCI—journalists, transparency advocates, FOIA lawyers and others—some were willing to cut bureaucrats slack for possibly having good-faith reasons to impose additional burdens, but nearly all were united in their frustration with how the FOIA law functions. They see a tool of transparency and accountability operating as one of obfuscation that protects the powerful through arbitrary, inconsistent, and inefficient administration.

Putting it another way, with a literary spin, they might be inclined to agree that if the situation isn’t Kafkaesque yet, it’s getting there.

RCI’s FOIA Requests to Nowhere

RCI’s experience is a case in point. Its ordeal began in April when this reporter submitted two FOIA requests to the SEC. Each took the form of a letter emailed to the Commission’s chief FOIA officer, establishing, among other things, the records sought, the rationale for seeking them, and their custodians.

The first request covered the SEC’s heavily debated proposed climate disclosure rule, which would mandate that businesses compile and submit, at great expense, a mass of information about their climate-related risks, including greenhouse gas emissions.

RCI asked the SEC for records of a series of 11 specific phone calls or meetings detailed in calendars made public by the Commission and involving senior SEC officials, including Chairman Gensler and his then-acting predecessor, Commissioner Allison Herren Lee; liberal members of Congress with oversight power over the SEC, including Sen. Elizabeth Warren and Rep. Maxine Waters; and private sector players including Larry Fink, CEO of the behemoth asset manager BlackRock—a leading proponent of politically driven, so-called ESG (environmental, social, and governance) investing.

Separately, Gensler has lately raised conflict-of-interest concerns arising from his past role as chief financial officer for Hillary Clinton’s 2016 campaign, in which he had final approval authority over payments for the discredited Steele dossier. His SEC is now investigating Donald Trump’s social media firm’s pending merger.

In RCI’s request focused solely on the proposed climate-disclosure rules, the investigative news nonprofit wrote that it believed the records were of significant public interest because they would provide insight into the “deliberations and debates of those most integral” to crafting a policy of “substantial potential economic, social, and political impact.”

Over the next two days, the SEC replied with a series of form acknowledgment emails, which, despite the prompt turnaround, contained not necessarily heartening news: Each of the 11 interactions for which RCI sought records would become its own individual request, while a final request was created for RCI’s request that the SEC provide “all records of or relating to the processing of” the 11 requests.

In this way, one request became 12.

That wasn’t the end of the surprises.

Before dealing with the first 11 of the new requests, the SEC dealt with the 12th. That was easy. A FOIA officer indicated that no processing records had been created for the first 11 unprocessed records, and that, “Therefore, we did not locate or identify any records responsive to your request.” Bemused in a way that “Catch-22” author Joseph Heller might be were he alive to witness the exchange, RCI asked if the SEC would ultimately provide process records, and whether it could confirm a document production schedule. The officer did not reply.

Then on June 9, RCI received separate emails from three FOIA officers.

In two of these emails—each concerning a specific meeting about which RCI requested records—SEC officials asked RCI to provide email addresses and/or domain names of all non-SEC participants.

A third email asked that RCI provide email addresses or domains for every ”individual and/or entity” listed in the original, now 12-part request—which would include, then, not only all non-SEC officials, but agency officials, including SEC Chair Gensler and Commissioner Lee themselves.

After seeking legal advice, RCI wrote the SEC: “Our counsel has suggested that you should have the capability to search for names absent email addresses. Is this feasible?” The SEC did not respond.

Adding to RCI’s confusion, its requests were not exclusively focused on emails. RCI sought “All records of or relating to” each of the events in question. (Emphasis RCI’s.)

So much for the saga to date of RCI’s first request. RCI also submitted a FOIA request covering the Commission’s then-proposed amendments rolling back Trump-era rules opening proxy voting advice to greater public scrutiny. Proxy advisory firms exert substantial influence over companies’ shareholder votes, lately often pushing corporate governance away from fossil fuels and toward other leftist goals of the ESG agenda.

The SEC similarly broke that request up into several parts, and similarly indicated that “no records regarding the processing of these requests have been created yet.”

When RCI asked for clarification, the SEC replied that the requests were being processed, but that RCI should plan on submitting a new request seeking processing records after each of the requests was completed.

It’s now four months after RCI submitted the two requests. The SEC has not provided a single page of responsive records.

Similar Stonewalling

RealClearInvestigations’ frustration is not unique.

Empower Oversight, led by Jason Foster, former chief investigative counsel to then-Senate Judiciary Committee Chairman Charles Grassley, is suing the Biden SEC over perceived FOIA intransigence. In a recent statement, Foster cited the “SEC’s pattern of bad faith negotiations on search terms and history of incomplete productions.”

Hans Bader, a Washington, D.C. lawyer and counsel in the Trump Education Department, with whom RCI consulted regarding its FOIA requests, says he too has run up against recent FOIA roadblocks pertaining to email information.

In response to a FOIA request of the Biden Health and Human Services Department, Bader was asked to supply the domain names of those identified. Absent such information, HHS said, it would close his request for failing to “reasonably describe” what he was seeking—as is legally required. This despite the fact, Bader says, that “for years, I submitted FOIA requests to agencies seeking communications … without listing … email addresses or domain names, and agencies managed to produce responsive records perfectly well. …”

When another Biden administration agency asked Bader for email addresses, he sued. The agency relented, averting a potential adverse ruling.

Reed Rubinstein, senior counselor for America First Legal, who helped RealClearInvestigations draft its FOIA requests, is skeptical of agencies’ demands that requesters provide emails.

“Agencies certainly have the ability to search employee emails for individual names, and have done so routinely for decades,” he said. “However, we are seeing agencies demand this [email addresses and domain names] now very often, especially when the underlying issue is a matter of political concern. This suggests that the White House has imposed a new requirement to slow down or frustrate requestors.”

The lawyer, who previously served in senior positions in the Trump Justice and Education Departments, said that in response to FOIA requests his organization lodged with the Biden DOJ’s Civil Division, it employed a dubious “narrowing and permission” tactic. The Civil Division insisted that Rubinstein’s group provide the email addresses for each custodian of the requested records—a condition only dropped after America First Legal agreed to limit custodians to top-tier officials—and indicated the division would then have to ask permission of each custodian to search their emails to fulfill the requirement—again—that the group “reasonably describe” the records sought.

In response, his organization recently called for the U.S. Office of Special Counsel to open an investigation into the Civil Division for its “arbitrary and capricious withholding of information subject to FOIA through its policy of requiring custodian consent prior to a search of responsive records”—a policy that would “obfuscate[e] the plain purpose behind” the transparency law.

RealClearInvestigations sought comment from a variety of FOIA sleuths about their impressions of RCI’s interactions with the SEC, and their own experiences seeking information under the law.

Notably, many of the prominent investigative journalists to whom RCI reached out did not respond, or would not speak on record—perhaps looking to stay in the government’s good graces.

Those who did respond gave varying answers as to whether they had been faced with agency requests for email addresses and domain names. That may reflect, as much as anything else, that agencies are independent and do not treat FOIA requests uniformly—a fault in the view of the journalists.

David McCraw, lead litigation attorney for FOIA lawsuits brought by the New York Times, told RCI he had not seen “anything like the request for addresses and domains” asked of RCI.

But Ken Klippenstein of The Intercept, a prolific FOIA issuer, like several others, indicated that requests of agency officers for email information are “common.”

Those who, like him, are familiar with such practices say there can be varying motivations behind it.

William D. Cohan, author of several New York Times bestselling books about Wall Street—most of which he says began with a FOIA request to a financial authority like the SEC—told RCI that generally agencies “will try to narrow your request.”

The author, who was writing of his struggles with FOIA including at the SEC over a decade ago, noted that “my experience has always been, whether you make it [requests] broad, whether you make it narrow, whether you help them [FOIA officials] … they will obfuscate, they will delay, they will blow through their self-imposed deadlines, and not even think twice.”

Michael Bekesha, a senior attorney at Judicial Watch, told RCI his organization has been asked to provide email information to narrow searches.

In Bekesha’s view, there are two associated problems: one, that agencies are “not being forthcoming about how they can conduct searches,” and two, that they may legitimately have “limited capabilities to conduct searches.” While some agencies can use a keyword to search all employees’ emails at once, Bekesha says “Other agencies seem to suggest or tell us that they have to go to individual workstations or pull up a specific individual’s email account and conduct the search that way.”

Sean Moulton, senior policy analyst at the Project on Government Oversight, says superior FOIA officers speak with requesters about their constraints and what can be done to overcome them.

Among those constraints, he too sees technology looming large. Just as “One agency can be very difficult to work with, and another agency could turn around and process almost an identical request without ever giving any push back,” some agencies have broader email mining capabilities than others.

Of those agencies that might reject a request absent email information—as Bader and Rubinstein faced—in Moulton’s view: “So few people take them to court that they’re basically just saying, ‘We think they’ll narrow it. We’ll play a game of chicken here.’”

FOIA litigation can be both time-consuming and costly.

Cohan recalled trading dozens of emails with the SEC over documents sought regarding General Electric—the subject of his 2022 book “Power Failure”—and, being flummoxed, ultimately suing at considerable expense. The two parties would settle, with the Commission agreeing to produce several hundred pages of documents per month for about a year. Unfortunately, says Cohan, “they had so heavily redacted” the documents “that it was to render [them] useless” for purposes of his book.

As such, the process may punish, and therefore deter information-seekers. Indeed, a 2016 House Oversight Committee report found that “Members of the media described their complete abandonment of the FOIA request as a tool because delays and redactions made the process wholly useless for reporting to the public.”