Published June 20, 2013
Even as the freshly minted Obama administration was pledging a "new era of open government" in 2009, officials were quietly adding new rules that had the potential to slow down public requests for documents.
Those rules, detailed in memos reviewed by FoxNews.com, could even trip up present-day efforts to dig into the IRS' practice of targeting conservative groups. The rules detailed in the memos largely emanated from the Treasury Department and, specifically, the IRS.
"It would seem to repudiate this notion that this is going to be the most transparent government in history," said Dan Epstein, executive director of Cause of Action, the group that first obtained the memos.
The memos follow reports about the administration's use of private email accounts, and coincide with ongoing debate about government transparency -- particularly with recent disclosures about widespread surveillance programs.
Epstein said the document request procedures are "troubling" since the media are "really concerned about the limits of government power."
According to the documents, the Treasury Department in 2009 set up an additional review for requests involving "sensitive information," which covered a broad range of items. The White House sometimes got involved, slowing down the process. The IRS also acknowledged having another review process for requests from "major media," but not for requests from private individuals.
Members of the media often try to obtain documents not readily available by citing a law known as the Freedom of Information Act. The Treasury Department, though, in late 2009 erected speed bumps for some so-called FOIA requests.
The rules were detailed in a November 2010 memo and report sent from the Treasury inspector general to Sen. Charles Grassley, R-Iowa.
The documents showed the Treasury Department set up an additional "formal level of review" for requests for "sensitive information." This category would cover everything from emails to memos to calendars to travel logs for top department officials, legal advisers, senior advisers and others.
Once a request was deemed "sensitive," it would then go before a "review committee," made up of officials from several Treasury offices.
Further, the document said a special report would be prepared for IRS requests from "major media." This covers requests from traditional news media as well as bloggers, and according to the report covered information that "was likely to attract news media or congressional interest, involved large dollar amounts, or involved unique or novel issues."
This report would then be sent to a higher-up in the division who decided whether the material should be disclosed.
The report repeatedly said that, in most cases, political appointees were not involved in these decisions, and that the agencies have no procedures to allow that.
But Epstein said these rules could cause problems as Congress and the media dig deeper into the origin of the IRS practice of singling out conservative groups for additional scrutiny.
He pointed to another memo, dated April 15, 2009, from then-White House Counsel Greg Craig that urged "executive agencies" to consult with his office "on all document requests that may involve documents with White House equities." Craig said this pertains to everything from FOIA requests to congressional requests to subpoenas.
This practice apparently dates back to 1993. The Treasury IG memo cited this, and described the White House involvement as "minimal and limited." However, the report also said the White House involvement "was responsible in several cases for adding a significant processing delay," which in Treasury's case slowed them down.
"It actually is heavily ironic in the realm of transparency," Epstein said.
He pointed to edicts and memos early on in the first term of the administration stressing transparency. Obama issued a January 2009 directive calling for an "unprecedented level of openness."
Attorney General Eric Holder in March 2009 directed all Executive Branch departments to use a "presumption of openness" when dealing with FOIA requests.
To that end, the administration has instituted several other transparency initiatives. It has followed through on requiring Cabinet secretaries to hold Internet town hall discussions, set up a comprehensive website to track stimulus spending, and set up a national declassification center.