A man whose career is to promote government transparency confirmed that the U.S. Department of Justice violated federal public-information law when it failed to respond to a media outlet’s Freedom of Information Act for the report of special counsel Robert Mueller within the time frame the statute requires. Federal government agencies break the timeliness law often, but “neither agencies nor courts give a f — -,” said Sai (the only reported name), owner of Fiat Fiendum, which seeks more government transparency through efforts like first-release FOIA disclosures.
“Imagine if the government actually obeyed its own laws,” Sai said when asked for verification that the Justice Department Office of Information Policy broke 5 U.S. Code § 552(a)(6)(E)(ii)(I) after Law & Transparency studied it along with 5 U.S.C. § 552 in general.
The particular provision of law mentioned says that government agencies must notify a person requesting public information “within 10 days after the date of the request.” But Douglas Hibbard’s OIP responded to the San Francisco Public Press’ request for the report of the Mueller investigation 13 days after the date of the Press’ request (on April 4 after a March 22 request).
5 U.S.C. § 552 concerns “public information; agency rules, opinions, orders, records, and proceedings,” according to the title of the law.
“Simple answer: yeah they broke the law,” Sai wrote. “The government gets to do that without consequences; you don’t.”
The American Civil Liberties Union did not return a request for comment.
“A tiny handful of agencies” will not treat deadline statutes like the one in the particular provision of law mentioned wildly differently as mandated — “that seem to believe that ‘10 days’ and ‘20 days’ do mean ‘days’ and not ‘months,’” Sai said.
Those are “mainly the ones whose FOIA ‘department’ is the in-house (lawyer’s) part-time job,” he wrote.
“Also, cities like (San Francisco) treat it legitimately seriously, and due respect to them,” Sai said. “But that’s very much the exception, not the rule.”
Aside from a pattern and practice injunction, “there’s no remedy” for the Justice Department’s transgression, Sai said. A pattern and practice injunction is a distinctive court order that makes a party have to do keep from doing a particular thing, citing a systematic practice of it previously.
But “no court” will grant that, Sai wrote.
“They universally view the time periods in the statute as a wildly aspirational joke that Congress made when writing the law so … they’re not going to enforce it,” he said.
“I don’t know of any FOIA case that has treated any deadline in the statute as anything but a standing issue or a technicality for fees and costs award basis,” Sai added. “They don’t even give it lip service, textualism be damned.”
“There’s nothing you can do” about agencies nor courts caring for “timeliness violations,” “except treat it as the day you get to file your lawsuit,” Sai wrote.
The Mueller investigation looked into Russia’s interference in the 2016 U.S. elections and whether President Donald Trump sought to obstruct justice, according to The Washington Post. The “basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society,” according to the same Justice Department.
U.S. Attorney General William Barr, who is over the Justice Department, is anticipated to put out a redacted Mueller report to Congress and the public on Thursday morning, Justice Department spokeswoman Kerri Kupec said, according to CNN.