Issa's Push on Homeland Security FOIA Raises Worries

February 9, 2011

Should Freedom of Information Act requests be granted only when they pass a political litmus test? Most open-government advocates would say "no way." So they might be expected to cheer House Oversight Committee Chair Darrell Issa (R-CA) for investigating whether the Department of Homeland Security (DHS) had been politically screening its responses to FOIA requests.

But Issa's method of investigating the matter -- not only asking DHS for five years worth of FOIA requests, but also asking for them same from some 180 federal agencies, has some Democrats on his committee worried about the privacy of the FOIA requesters. Some such information is already available through agency FOIA logs (which are FOIAble), but Issa's demand for specifics of information requests goes much further than that.

Issa's interest in the matter began in 2010, before Republicans took over the House of Representatives. In July of 2010, the Associated Press published a document-based expose charging that DHS political appointees were reviewing FOIA requests received by that agency. In August 2010, Sen. Charles Grassley and Issa sent letters to the inspectors general of 29 federal agencies, asking them to look into whether their agencies were limiting FOIA information releases on political grounds.

After Republicans took over the House and Issa became chairman of a powerful investigative committee, he expanded the probe to many other government agencies in addition to DHS. His demands for FOIA information spanned the last three years of the Bush administration as well as the first two years of the Obama administration.

Moreover, Issa expanded the materials he was asking for beyond the raw FOIA request logs to include databases of names and specific information requested, as well as the original letters from requesters in some cases.

It was this sweeping request -- as well as the possibility that Issa, a friend of industry, could amass a database on hundreds of thousands of FOIA requesters -- specifically including journalists and their lines of inquiry -- that prompted alarm from committee Democrats, among others. This raised not only privacy concerns, but the possibility that the investigations of journalists could be short-circuited by tipping off the subjects of their investigations.

One of the original complaints, back in 2010, was that DHS politicals were intercepting inquiries from the very watchdogs who were trying to keep DHS honest. The AP wrote: "Anything requested by lawmakers, journalists, activist groups or watchdog organizations had to go to the political appointees. This included all of AP's information requests, even a routine one for records that had already been sought by other news organizations."

The Electronic Privacy Information Center (EPIC), for example, had originally asked the FOIA ombudsman at the National Archives to look into DHS' practices. EPIC complained that all FOIA requests from EPIC itself were being routed past DHS political screeners. After DHS issued an annual FOIA report in February 2011, EPIC said "questions remain" and renewed its call for an investigation by the FOIA ombudsman.