More than 300 public-records lawsuits filed in Obama's first year

27 Jan 2010 // More than 300 people and groups have sued the Obama administration fighting to get federal government records in the year since President Obama pledged his administration would be the most open in history.

In case after case, the plaintiffs contend that little has changed since the Bush administration, when most began their quests for records. Agencies still often fight requests for disclosure, contending that national security and internal decision making needs to be protected.

The lawsuits cover a wide range of issues. A retired Marine wants to review soldier autopsies to learn whether the Pentagon has issued defective body armor. A Texas law professor questions whether the route for the Mexico-U.S. border fence unfairly harmed minority landowners. Closer to home, the Chesapeake Bay Foundation continues its fight to learn whether agencies are properly punishing those who destroy wetlands.

Despite the administration's progress in opening scores of important and once-secret documents, court dockets show a slight increase in the number of suits filed under the federal Freedom of Information Act since Obama was sworn into office. The electronic court records show 319 lawsuits filed since January 2009. Under the final two years of the Bush administration, 278 and 298 records lawsuits were filed in 2007 and 2008, respectively. People seeking records can sue only after the government repeatedly rejects their requests, usually after months of attempts and appeals.

The White House disputes the numbers collected in the court logs. It says the Justice Department keeps its own figures showing that there were 328 records lawsuits filed in 2008 and 306 in 2009. Justice officials say the difference could be because some cases are mislabeled in court records, and a few others never show up in the agency's count because the department does not get involved.

White House officials say the release of huge volumes of agency records -- including once-secret Bush administration memos on torture, logs of White House visitors, and data about birds endangering planes -- has been nothing short of historic. They argue that a year's worth of lawsuits doesn't fully reflect the administration's commitment to transparency.

"During the course of the president's first year in office, more has been done than ever before to make our government open and transparent," said White House spokesman Ben LaBolt.

The difficulty some still face in quickly getting public records has put a damper on some of the optimism open-government advocates shared when the president addressed transparency in an executive memorandum on his second day in office. It instructed agencies to generally presume their files were public -- unless prohibited -- in the interest of promoting trust.

For the Chesapeake Bay Foundation, the Obama administration's rejection of its record request has been "a major disappointment," said the foundation's top lawyer, Jon Mueller. Mueller, a former federal prosecutor who also handled records requests in his Justice Department job, said he was surprised when the U.S. Army Corps of Engineers said it couldn't share photographs that a developer provided of his building amid the wetlands of a Magothy River island. When requesting the records under Bush and suing under Obama, the government continued to say the information was now part of the Corps' investigation.

Last month, a federal judge ruled against the Corps, saying the agency had not justified its reasons for withholding and ordered it to do so.

The Justice Department, the only agency that so far has reported its recent performance on openness, said it has increased the number of cases in which it grants full release of records by 5 percent, from fiscal year 2008 to 2009. Also, a coalition of government reform groups gave Obama an "A" this month for his broader open-government initiatives.

Meredith Fuchs, an open records expert and general counsel at the nonprofit National Security Archives, said she has seen real improvement in the amount of material some agencies are now providing. But in cases her group has taken to court, "it's more of a mixed bag" with the Obama administration. She suspects the administration reflexively defends decisions made years earlier to withhold records.

"It's hard to shift the battleship," Fuchs said. "We would like to see a bit more pressure put on agencies that are under-performers on openness. "

Accountability groups cheered Obama's Jan. 21, 2009, memorandum, which set a far different tone than Bush Attorney General John Ashcroft's guide on records, issued days after the Sept. 11, 2001, terrorist attacks. Ashcroft encouraged agencies to withhold records "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

The Obama memorandum was seen as suggesting the opposite: agencies should release records unless mandated to withhold them. Some record-seekers are prominently quoting the president in their lawsuits.

In it, Obama calls the Freedom of Information Act "the most prominent expression of a profound national commitment to ensuring an open Government."

"The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the memorandum said. Some transparency advocates see signs Obama's words are gaining traction. Paula Dinerstein at Public Employees for Environmental Responsibility said that under Obama, her watchdog group has obtained records about asbestos contamination in Libby, Mont., and a scandal-plagued Interior Department program that appeared to let oil and gas firms pay little for using public land.

"We have seen some change -- not government-wide, not agency-wide, but there is some movement," she said.

Some little-known requesters complain they are still getting the same runaround, by the same agency officials who turned them down under Bush. Jim Lesar, a veteran public records lawyer, said big-name cases -- such as the Citizens for Responsibility and Ethics in Washington seeking White House visitor logs -- get attention from the Obama administration, but others do not.

"Except in those high-level cases, the Obama memorandum is close to meaningless," he said.

One frustrated requester is Denise Gilman, a University of Texas Law School professor who studies immigration issues. Gilman in 2007 asked the Department of Homeland Security and Army Corps of Engineers how they decided where to build a multibillion-dollar security wall to keep out illegal immigrants. Gilman hoped to learn if political concerns shaped the route.

Army Corps officials urged Gilman in 2008 to seek less information -- because it would probably cost her $54,545.55 in copying fees. In spring 2009, the agencies told her releasing information could invade landowners' privacy. More recently, the Corps said it really didn't have many pertinent documents after all. Homeland Security is now sending her a large volume of records, although many are redacted.

"Don't get me wrong -- I'm glad to be getting some records," Gilman said. "But the delay has been very frustrating. This Obama administration was working on decisions related to the wall in the spring. . . . Now the wall is pretty much built, so it's actually too late to use this information to shape those decisions."

Roger Charles, a former Marine and soldier advocate who helps publish the watchdog newsletter DefenseWatch, wanted to study autopsies and reports detailing soldiers killed after being hit by bullets or explosives in the torso. He hoped he could learn if the ceramic plates in the vests were properly protecting soldiers.

Gen. George Casey, the Army's chief of staff, told a federal judge in Washington that releasing wound details could give enemies clues and expose U.S. troops to more danger.

"It's insulting to me that they would say we would increase the risk for any of these great kids," Charles said. "We are trying to learn what we can to protect them."

Mueller said he looks forward to getting his records but has some sympathy for the president's team.

""Turning over a new leaf is more difficult than they had expected," he said.