NEW YORK TIMES: “If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” (Again, note the phrase “derived from.”) What has happened since then in actual criminal prosecutions? The opposite of what [Obama administration] Solicitor General Donald B. Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures. […]
By insisting that they need not disclose whether there had been surveillance under the 2008 law, the two sets of prosecutors have so far accomplished precisely what Mr. Verrilli said would not happen. They have immunized the 
surveillance program from challenges under the Fourth Amendment, which bans unreasonable searches and seizure. […]
Jameel Jaffer, the American Civil Liberties Union lawyer who represented the plaintiffs in the Clapper case in the Supreme Court, said the recent maneuvers were unseemly and disturbing. “The effect of the government’s shell game,” he said, “is that the statute has been shielded from judicial review, and controversial and far-reaching surveillance authorities have been placed beyond the reach of the Constitution.” Whatever the government’s precise legal obligations, it remains free to say what everyone seems to know: that the 2008 program has been used to gather evidence for criminal prosecutions. Such a concession would seem to be a small thing. All it would do is allow the courts to make a judgment about whether the program is constitutional. MORE
RELATED: The federal Freedom of Information Act was supposed to be a torch that journalists, advocates and ordinary people could use to cast a light on the operations of their government. It’s profoundly disappointing to see the Obama administration proposing changes to FOIA that would allow federal agencies to lie about the very existence of information being sought. That’s not progress, and it’s certainly not transparency, a principle the president has repeatedly and publicly pledged allegiance to. We hope the U.S. Department of Justice backs away from these and other FOIA rule revisions it has proposed. The worst among them, in our estimation, is the proposed change that would allow the government to tell those requesting information under FOIA that the material does not exist when, in fact, it does. The change would apply to certain law enforcement or national security documents. MORE
RELATED: Bloomberg News found that 19 of 20 federal agencies did not comply within 20 daysto a request for travel expenses made under the Freedom of Information Act. Analysis done by the Scripps Howard Foundation reveals that President Obama’s administration granted a smaller percentage of open records requests in its first two years in office than George W. Bush’s administration granted in its final three years.
White House spokesperson Eric Schultz defended the administration’s transparency efforts, telling Bloomberg, “Over the past four years, federal agencies have gone to great efforts to make government more transparent and more accessible than ever, to provide people with information that they can use in their daily lives.” Schultz “noted that Obama received an award for his commitment to open government,” Snyder and Ivory write. “The March 2011 presentation of that award was closed to the press.”
Pamela Engel, an Ohio University student intern for the Scripps Howard Foundation Wire in 2011, compiled data from 15 cabinet-level federal departments (Justice Department, Homeland Security, State Department, etc.). By email, she said she found these overall rates for the resolution of FOIA requests:
- 2010 – 62.3% granted, 37.7% denied
- 2009 – 61.7% granted, 38.4% denied
- 2008 – 59.5% granted, 40.6% denied
- 2007 – 76% granted, 24% denied (excluding Veterans Affairs, which had a spike in requests that raised the granted rate up to 91%)
- 2006 – 76.5% granted, 23.5% denied (excluding Veterans Affairs, which which had a spike in requests that raised the granted rate up to 91.5%)
Figures released by the Justice Department show that in 2011, 64.7 percent of FOIA requests were granted in full or in part. MORE