FOIA – The Little Act that Could, Can and Will | Sara Christiansen

What began as a tool of transparency in government has transcended into a virtual blunderbuss of bureaucracy. Anyone who thinks that the little 1966 statute known as the Freedom of Information Act (FOIA) has lost its power need only look at how it is being used in the upcoming presidential election to validate its purpose and authority.

Take the current FOIA action between conservative organization Citizens United and 2016 presidential candidate Hillary Clinton, for example. According to Kimberley A. Strassel of the Wall Street Journal, Citizens United filed an FOIA lawsuit in federal court earlier this year, demanding the release of documents pertaining to the former secretary of state’s work with the Clinton Foundation, as well as anything concerning the 2012 terrorist attack in Benghazi, Libya.

Despite Clinton’s best protestations, under FOIA regulations the State Department was required to release records regarding anything related to this request – including documentation on what they didn’t intend to release. That’s right. Under this act, everything doesn’t have to be released, but it does need to be disclosed.

Photo: Reuters, Jim Young
Photo: Reuters, Jim Young

Because of the unique power of the FOIA, anything related to a request that is withheld from release must be detailed in broad terms on a special descriptive index. This inventory, known as the Vaughn Index, may not sound very helpful; but the reality is that a general description of undisclosed documents can be quite telling, in and unto itself.

For example, through a combination of undisclosed emails and public records, we learned that Mrs. Clinton received an award at a 2012 dinner she attended in Ireland. The dinner was promoted by Teneo, a consulting firm operated by Clinton supporter, Doug Bland, and staffed by consultant Huma Abedin – a close friend of Clinton’s who also works at both the State Department and Clinton Foundation. The award was given by a donor of the Foundation and received by Clinton in her capacity as secretary of state. Talk about complicated.

As for Benghazi, we’ve learned through the Vaughn Index that 14 undisclosed email exchanges exist between State Department employees and Clinton during the time of the Benghazi attacks. These hidden emails, should they be ever be released, may point to either a cover-up or acquittal regarding the government’s involvement in an event that ultimately led to the deaths of four U.S. diplomats. Had the existence of these emails not been revealed following an FOIA request, the Benghazi investigation might have been resolved by now.

It’s important to note that the government is not required to release the Vaughn Index to Congressional investigators. It is only after an FOIA request is filed that the index is ever revealed. Without an inventory of documents, investigators must simply trust that all associated paperwork has been released – but there is no way of knowing if that is true without the index. Consequently, FOIA requests provide a higher standard of transparency that what a federal probe may reveal.

As of this date, 35 outstanding FOIA suits are still pending – effectively forcing the government to release information to the American public – which is precisely why the act was created in the first place.

Because of the FOIA, 7,000 pages of Clinton emails were released by the State Department in October – emails that evidenced the fact that former secretary of state used her private email account to discuss classified information with outside entities.

Because of the FOIA, the State Department has promised the release of 55,000 more Clinton emails. That translates to 55,000 more potential instances of inappropriate emailed discussions, such as the one in which the former secretary of state discussed U.S. policy with Syrian diplomats who advised her to “stop supporting groups such as the Syrian National Council,” via her private email account.

Because of the FOIA, we know that White House director of policy planning, Anne-Marie Slaughter, joked to Clinton about the common practice of discussing State Department business on personal email accounts. In 2011, for example, Slaughter emailed Clinton, stating “it would be a great time for someone inside or outside to make a statement/ write an op-ed that points out that State’s technology is so antiquated that NO ONE uses a State-issued laptop and even high officials routinely end up using their home email accounts to be able to get their work done quickly and effectively.”

Perhaps Clinton is now regretting not following her own advice when she responded, “I think this makes good sense.

And so this is your statement/op-ed Ms. Slaughter, and Mrs. Clinton. It makes good sense to remember that there is transparency in government with the FOIA. It may not be perfect, but one thing’s for certain – FOIA is the little act that could, can and will be used however and whenever our nation has the right to know.