Unhappy Anniversary: A Year of Treasury Department Stonewalling

WASHINGTON, D.C, Aug. 7, 2013 – Today marks one year since the Competitive Enterprise Institute filed two Freedom of Information Act requests for documents from the Department of Treasury discussing its thoughts, plans and collaborators on a possible carbon tax. This direct energy tax is the suddenly fashionable approach to the Obama administration’s war on coal, since its cap-and-trade scheme failed when attempted through the proper democratic process.

Over the course of this year, CEI has experienced just how difficult it can be to extract documents, even those critical to public understanding and judgment on a debate of enormous economic consequence, from an agency that senses those documents would harm a cause and/or cast it in a bad light. The Treasury Department, which had agreed in March to release approximately 13,000 documents by August that responded to CEI’s requests, as of late July had released only 329.

Despite Treasury’s claim this evaporation of nearly 10,000 emails and other records was because CEI narrowed its request, CEI attorneys suspect they know why — barring a last-minute gusher of many thousands of documents — Treasury will not follow through on these terms memorialized in a court order.

“The Obama administration needs to buy time,” said Christopher C. Horner, senior fellow at CEI and author of “The Liberal War On Transparency” detailing the administration’s sometimes convoluted schemes to avoid disclosing public records. “Treasury’s antics, including dragging its feet on producing emails and then, mysteriously and spectacularly reducing the document count, paint a troubling picture of an agency with something to hide and a commitment to hide it.”

Horner submitted these two requests one year ago after seeing signs the administration hoped to quietly spring a ‘carbon tax’ in an expected budget deal. The requests sought emails and other documents using ‘carbon’ from two offices within Treasury – Legislative Affairs and Environment and Energy. When Treasury responded with stalling tactics – including a bizarre trick of demanding thousands of dollars to photocopy at least 7,300 electronic mails, which of course do not need to be photocopied and which CEI specifically had asked for in electronic format – CEI sued the agency.

This March 22, CEI and Treasury reached a settlement agreement under which the agency would release approximately 14,000 responsive documents to CEI. Treasury already had released 1,000 pages, most of which were, strangely, publicly available documents and therefore not covered by FOIA. None of them were emails, despite Treasury’s claim it would have to photocopy thousands upon thousands of emails that it had been diligently processing for months.

Treasury was to produce the remaining 13,000 or so responsive documents in five monthly stages – beginning in April and ending in August – or demonstrate why any document it wanted to withhold should be exempt from disclosure.

Treasury has failed dramatically to keep to this schedule. If the 13,000 promised documents had been delivered according to schedule and in roughly equal batches, CEI would have received four deliveries of 2,600 documents each in April, May, June and July. Instead, CEI received monthly deliveries each well short of 200 pages.

Presuming, for the purposes of easy tabulation, each produced page equals one document – which is generous given most documents are actually multiple pages – CEI received 77 documents in April, 110 in May, 108 in June and only 34 in July.

In this process, Treasury pleaded that the search term “carbon” was “overbroad” because emails or documents using “carbon” could be discussing any number of topics. CEI notes the low likelihood Treasury officials discuss why people don’t use carbon paper anymore or the benefits of carbon fiber advancements in aviation.

CEI also notes, for the record, another administration email it uncovered, in a different FOIA request, counseling staff to deal with unwanted FOIA requests by responding that they are “overbroad.”

CEI nonetheless specified to Treasury that it seeks uses of “carbon” in all its likely iterations by a department, and its offices, concerned with distributing revenues from a carbon tax or carbon cap and trade scheme (e.g., “carbon tax,” “carbon levy,” “carbon fee,” “carbon charge”, “carbon cap,” “price on carbon,” and “tax on carbon”). Treasury now says the majority of the emails and other documents were discussing matters completely different than these and so plans to turn over a fraction of the previously identified documents.

“In other words,” said Horner, “Treasury has fallen about 2,500 pages short of the 2,600 every month. Sadly, nothing in Treasury’s behavior so far reflects a sincere effort to comply with this federal law compelling transparency, and everything belies its previous claim of months of diligent processing. It’s time to ask why, where all the emails have gone, and how this represents the most transparent administration, ever. In short, Treasury should just level with the taxpayer and tell us what it is hiding.” This chart presents how CEI has so far received only 329 of the 13,000 documents the Treasury promised to deliver by the end of August.

>> See the Treasury Department’s monthly productions of documents

>> Read CEI’s September 2012 press release: CEI Files Suit to Force Administration to Comply with FOIA