FOIAing the Trump Administration: the danger of assuming bad faith

FOIAing the Trump Administration: the danger of assuming bad faith

Plus, new discoveries in old requests and exploring #J20 protest documents

Written by
Edited by JPat Brown

FOIA works best when everyone assumes that requests are made in good faith, as a means for journalists, activists and average citizens alike to contribute in a meaningful way to oversight of the their government. This week, we take a look at a few stories that undermine that assumption of good faith, both among government officials and in the public eye.

You can use FOIA to hold the Trump administration accountable by filing a records request of your own with the agency, following MuckRock’s “FOIA the Trump Administration” project, and joining our Slack channel to share ideas and get help with your requests. If you have a Trump administration related FOIA you would like us to highlight, share it over email, Twitter, or Facebook and we may include them in the next roundup.

A bad faith assumption spoils the bunch

The New York Times reported the week on how Republican campaign research group America Rising has been filing FOIA requests for the emails of EPA employees who have spoken publicly against proposed budget cuts or the general direction of their agencies. This use of FOIA by a partisan research firm doesn’t sound all that unexpected, but many were alarmed by the revelation that the same firm was also recently hired by the EPA to provide “media monitoring.”

The EPA insists that it is only paying for a clipping service from America Rising, but this reassurance hasn’t calmed fears from agency employees and the public that agency leadership intends to surveil career employees and root out those resistant to the Trump administration’s agenda.

Last week, The Washington Post revealed that Secretary Ryan Zinke’s office has been keeping keeping close tabs on FOIA requests at the Department of the Interior and taking over the handling of requests related to key administration priorities. FOIA officers across the department were told that the Office of the Secretary would handle all requests related to the department’s review of national monuments.

Both of stories raise understandable concern about irregularities and raise the possibility of malicious intent. Even if the malicious intent isn’t there, just the specter of it can undermine FOIA for all requesters. If an agency leadership operates under the assumption that FOIA requests are a bad faith exercise from their political enemies, it can lead to meddling and slower responses. If requesters cast reflexive suspicion on requests of those who they disagree with politically, then it weakens public pressure for a more transparent and responsive government. If lawmakers come to regard FOIA as a partisan tool, we are less likely to see FOIA reform and better funded FOIA offices.

We should of course call out bad faith behavior when we see it, either from requesters or from government agencies (the EPA canceled its contract with America Rising after public outcry). But we also need to recognize that FOIA requesters are in a precarious position when such behavior occurs and understand how much we have to lose if bad faith becomes an assumption that surrounds FOIA.

Luckily, there’s plenty that the average requester can do to help maintain an assumption of good faith around FOIA requests:

  • Make your requests specific. Avoid overbroad fishing expeditions.

  • Make a case in your request, even if it’s just a line or two, that the information you seek is in the public interest.

  • Speak up loudly for the rights of all good faith requesters, even if you dislike their agenda

  • Share the results of your FOIA request. Let others see what is and isn’t there.

  • Be respectful to FOIA officers!

Newsworthy info in an old request

White House lawyers criticized Special Counsel Robert Mueller’s investigation, claiming that Mueller’s team improperly obtained Trump transition team emails from the General Services Administration. Brian Beutler of Crooked Media, however, found a memorandum of understanding the transition team signed that waived their expectation of privacy among the documents he received in an old FOIA request.

Responsive documents don’t have to be brand new to contain newsworthy information. It’s always worth perusing completed MuckRock requests on topics or agencies you’re interested in, whether they were completed yesterday or years ago.

MuckRock requests to explore

A jury has begun deliberating on fate of the first six J20 defendants, who are charged with felonies stemming from their presence at protests of Donald Trump’s inauguration. You can browse completed and pending MuckRock requests on the J20 protests here.

Join our Slack channel to share ideas for FOIAing the Trump administration or to get help with your own requests.

Image by Andrea Hanks via White House Flickr