Courts

In Light Of Confirmation Hearings, Government Says It'll Provide Brett Kavanaugh's Relevant Writings... In 5 Years

The government's weak excuses for violating its FOIA obligations must stop.

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(Photo by Jabin Botsford/The Washington Post via Getty Images)

While we all understand that Brett Kavanaugh went to Yale so there’s no need to further vet him, some folks out there have the crazy idea that installing someone on the Supreme Court for two to three decades might require a more critical inquiry. Non-partisan group Fix the Court, represented by American Oversight, filed FOIA requests seeking Kavanuagh’s files from his years in government service. With scrutiny already mounting over his shifting views on the propriety of investigating a president — which seem to boil down to “Democrats should be, Republicans shouldn’t” — delving into Kavanaugh’s papers from his years serving in the Office of Independent Counsel would seem uniquely relevant.

In response, the National Archives, fully cognizant of the statutory deadlines imposed by FOIA, informed FTC that they would comply with the request in five years — and wouldn’t even deliver the first tranche of documents for 22 months. Even on the Merrick Garland timeline, those documents wouldn’t get out in time to make a difference.

But the National Archives are positively speedy compared to the Bush Library. The Library specifically identified the materials exempt from FOIA and said of the rest that its “best estimate at this time,” is that the request “may be completed in approximately 20 years.” We’ll stabilize Iraq in less time.

The DOJ had the good sense to just completely ignore the request rather than clown themselves with a patently improper timeline.

Fix the Court has sued the Archives and the DOJ here and here. They’ve not taken action against the Bush Library yet, probably because they’re still dumbfounded at its response.

The fact that these entities are refusing to comply with the law, especially on an issue of such critical and time-sensitive import, is disturbing. But more disturbing is how facially flimsy their excuses are. The National Archives informed Fix the Court that the total universe of potentially responsive documents “is estimated at 20,000 pages.” Pages?!?! Not “files” folks. Pages. The Bush Library is at least trying to avoid the laugh test by flagging over 100,000 files as potentially responsive. But 20,000 pages in five years? That’s reviewing a little over 300 pages a month. If you’re looking for work/life balance, consider the National Archives!

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We dealt with this kind of chicanery before when the EPA tried to stonewall FOIA requests by claiming they simply couldn’t handle the volume of documents detailing corrupt activities to keep up. As we pointed out then, lawyers comply with requests orders of magnitudes larger within 30 days.

The Archives, taking its lead from the EPA, tried to explain away its failings by claiming it’s not the volume of the request but the volume of requests, saying they’re “currently processing requests received in February 2013.” But like the EPA’s excuse, this doesn’t hold water or “drinkable toxic effluent” or whatever we call it now. This only makes sense if you operate from the premise that every FOIA request is seeking unique materials — they’re not, most are asking for about the same subjects — and that compliance with each request must be approached from scratch.

Affordable tools like Logikcull exist to streamline this process for agencies. Logikcull already serves the 12 biggest city litigation departments and is used by dozens of organizations at the local, state, and federal levels to meet exactly this need. When we covered the EPA debacle, we asked Logikcull CEO Andy Wilson about it:

Wilson explained, “a big challenge for government organizations is just having a repeatable, documentable process in place to respond to records requests so you can speak to the exact steps you took to make a disclosure.”

By uploading the universe of documents into one, consistent service, running the searches required to pull the necessary documents — and even to carry over the necessary information about privilege and confidentiality learned from prior reviews — becomes instantaneous.

Here’s hoping the FTC’s lawsuits end up in front of a magistrate with enough experience to become incensed at the government’s position. There are rumblings that the Senate plans to wrap up Kavanaugh’s confirmation in a couple of months. I know it’s fashionable to claim that judges shouldn’t be questioned about their past positions anymore, but if there’s anything of merit lingering in his files, it should be provided to the public… yesterday.

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Earlier: Scott Pruitt’s EPA Claims It Can’t Timely Comply With FOIA Requests, Smart Lawyers Know That’s A Lie

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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