Why the Freedom of Information Act Is Virtually Worthless

Conservatives often express frustration that so little, seemingly, can be done about the corruption of the Obama administration. Part of the problem is that when a party is determined to stonewall, our legal system is generally too slow to provide an effective remedy within the time frame of a presidential administration.

The case of Austan Goolsbee is instructive. In August 2010, Goolsbee, who directed Obama’s Economic Recovery Advisory Board and later chaired his Council of Economic Advisers, gave a press briefing in which he discussed corporate income taxes. In that briefing, he suggested that he had access to confidential IRS data, and accused the administration’s beta noire, Koch Industries, of not paying corporate income taxes:

So in this country we have partnerships, we have S corps, we have LLCs, we have a series of entities that do not pay corporate income tax. Some of which are really giant firms, you know Koch Industries is a multibillion dollar businesses.

It was difficult to see how Goolsbee could have such information–assuming he didn’t just make it up, like Harry Reid–unless he had improper access to Koch Industries’ tax returns. This is a serious matter; for someone at the IRS to convey information about a taxpayer’s returns to a White House employee is a crime. So Republican members of the Senate Finance Committee requested an investigation, which was carried out by TIGTA, the U.S. Treasury Inspector General for Tax Administration.

TIGTA completed its investigation, and on August 10, 2011, a TIGTA Special Agent so advised Koch Industries via email, adding that the final report on the investigation “would now be available through a Freedom of Information Act (FOIA) request.” Here is the email:

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Koch and a group called Cause of Action submitted FOIA requests. Both requests were denied by TIGTA; Koch didn’t sue to compel production of the requested documents, but Cause of Action did. Cause of Action asked not only for documents relating to the Goolsbee investigation, but for documents relating to any transfers of taxpayer return data from the IRS to the White House. TIGTA interposed various objections, arguing that it was exempt from disclosing whether any such documents exist, let alone producing them.

TIGTA’s position was rejected by federal judge Amy Berman Jackson in an order dated September 29, 2014. She directed TIGTA to respond to Cause of Action’s request–which meant that TIGTA had to disclose whether it has documents relating to investigations of illegal transfers of taxpayer information from the IRS to the White House, not necessarily that it has to produce them (although the court held that TIGTA had waived its most meritorious objection).

Yesterday, President Obama’s Treasury Department finally served its response to Cause of Action’s FOIA request, more than two years after the request was made on October 9, 2012. The response disclosed that there are “2,509 pages of TIGTA records potentially responsive to your request.” So the Inspector General has done a considerable amount of investigation into criminal transfers of taxpayer data to the Obama White House.

However, of those 2,509 pages, the Treasury Department produced…27 pages. The rest were withheld, based on a statutory exemption (taxpayer confidentiality) and a purported privilege. In what can only be construed as a middle finger directed to Cause of Action, and perhaps the federal court, the documents produced by Treasury consisted almost entirely of form letters that it wrote to several Republican Senators who expressed concerns about the Goolsbee incident.

Here is TIGTA’s response:

Final Response to Cause of Action FOIA Request

So now litigation will continue over Treasury’s objections. A briefing schedule is being set for the next round of motions. But you get the picture: when an administration is determined to stonewall, which has been President Obama’s response to every inquiry, it can drag the process out nearly indefinitely. We haven’t yet gotten to the point where the administration appeals the district court’s order to the D.C. Circuit Court of Appeals, which has been packed with Democrats due to Harry Reid’s revocation of the filibuster as to judicial nominees, but that may eventually be coming.

In all likelihood, the Obama administration will be long gone before we find out whether its IRS fed taxpayer information to the White House for political purposes. But that’s the point: as with Fast and Furious, Benghazi, the targeting of conservative 501(c)(4)s and other Obama scandals, a cynical determination to run out the clock, combined with the federal government’s infinite litigation budget, can prevent damaging information from coming to light for years. There might be effective remedies for Executive Branch corruption, but the Freedom of Information Act is not among them.

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