Obama reverses course on FOIA
Open-government advocates applaud but look for results
On his first full day in office, President Barack Obama said the “Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” Open-government groups cheered the Obama administration’s initial policy statements, but they’re waiting to see if change has really come to a government that grew opaque under the previous administration.
Advocates chided the Bush administration for a lack of transparency and the Justice Department’s policy of generally defending agencies' decisions to withhold records requested by the public. The number of FOIA requests that were fully granted fell steadily during the Bush administration: the government fully granted only 164,147 in 2007, compared to 302,480 approved in 2001, according to a recent analysis of 25 agencies’ data by Sunshine in Government Initiative (SGI), a coalition of media groups. In relation to total requests, that’s a drop from 55 percent of requests fully granted in 2001 to 38 percent in 2007.
In March, Attorney General Eric Holder issued new FOIA guidance to agencies that said Justice would defend agencies’ decisions to deny FOIA requests only in limited cases. Holder also said agencies should not withhold information just because they can legally do so. Moreover, he said, agencies should consider partial disclosure rather than outright denial when full disclosure is not possible.
Holder also told agencies to respond to requests promptly and actively work to publish agency information online.
The new guidelines fleshed out a memo that Obama issued Jan. 21 that states that “all agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open government.”
“Having the president issue a memo on his first full day in office sent such an immediate signal that this was a new day in terms of transparency,” said Melanie Ann Pustay, director of Justice’s Office of Information and Privacy. “It’s been very gratifying to see that agencies are very responsive to these new guidelines, very enthusiastic about them, and they’re looking forward to implementing these principles.”
But the Obama administration's agency leaders also inherited backlogs of thousands of requests. In recent years, the time people have had to wait for FOIA responses from agencies typically exceeds the amount allowed by law. Indeed, some FOIA requests are still pending from more than a decade ago, according to open-government groups.
Although many observers laud Obama’s policy changes, they caution that it will take time to judge its actual effects, especially given the massive backlog. SGI’s analysis, released April 13, found that about one-third of FOIA requests were backlogged in 2008, up from 13 percent in 1998.
"These numbers paint a baseline for measuring the impact of President Obama's Day One policies on transparency," said Rick Blum, coordinator of SGI, in a statement. "If agencies improve their operations year after year, the Day One policy on disclosure will have made a substantial impact."
The task is harder than it might have been because the ranks of FOIA officers dwindled during the Bush years, declining by 34 percent during the past decade.
“It’s really wonderful that the president said what he said, and it’s also wonderful that the attorney general so quickly came out and said what he said, but now making it a reality is going to take more than big statements of good principles,” said Meredith Fuchs, general counsel for George Washington University’s National Security Archive, which has filed thousands of FOIA requests.
Pustay said chief FOIA officers will need to report each year on the steps they’ve taken to improve transparency in their agencies.
Fuchs said agencies could improve FOIA response by holding employees who process records under FOIA more responsible for their performance. She also said the government should give agencies incentives to encourage them to do a good job on FOIA requests, and senior agency executives should demonstrate that they think FOIA and transparency are important.
In March, the National Security Archive cited the FBI for “outstandingly bad responsiveness to the public that flouts the letter and spirit" of FOIA by giving the bureau its annual Rosemary award. The award is named for Rose Mary Woods, President Richard Nixon’s secretary during the Watergate scandal.
The group said the FBI provided documents for less than 14 percent of the 17,717 total FOIA requests it processed in 2008. That equated to the bureau partially granting documents to 2,276 requests and granting full, unredacted documents to only 89 requests.
The FBI is one of the agencies that open-government advocates sued during the Bush administration because of its response to FOIA requests. In one holdover case brought by the Electronic Frontier Foundation, the new Obama guidance appears to uphold the previous decision to withhold information. Justice said in a court filing April 13 that it did not intend to reverse its decision.
“There’s one of two things going on,” said David Sobel, EFF’s senior counsel. “Either they are paying lip service to [the new guidance] and not really taking a look or they’re taking a second look and deciding it doesn’t make any difference.” Sobel is among the advocates who would have liked to have seen the attorney general’s new FOIA guidelines specifically address pending litigation.
Fuchs said that so far, she has not seen a major turnaround in litigation regarding FOIA requests. The Obama administration has been uneven in its handling of ongoing FOIA litigation under the new guidelines, she said.
“It’s very hedging language, and it calls for DOJ lawyers to confer essentially with the agency people who turned the request in the first place under the Bush administration” Patrice McDermott, director of OpenTheGovernment.org, added.
Still, despite what McDermott characterizes as the administration’s cautious desire not to get ahead of itself, she said, “in general, the rhetoric of the Holder memo is terrific.”
Sobel said the new guidance would affect agencies' ability to employ a commonly used FOIA exemption called deliberative process privilege, which is meant to "prevent injury to the quality of agency decisions." But there is broad agreement that it will likely take some time for the effects of the Obama administration’s FOIA policy to be evident.
“It’s not like the flood gates open up and every document comes out, but I do think there will be sort of incremental change and it will happen over time,” Fuchs said.
Blum said FOIA performance should be a benchmark for evaluating this administration’s transparency efforts.
“FOIA is that fundamental backstop guarantee that you will be able to ask agencies for information and get it unless it meets one of the exemptions,” he said.
Ari Schwartz, vice president and chief operating officer of the Center for Democracy and Technology, said it would be ideal if the number of FOIA requests were to decrease because of agencies' proactive openness.
“So much information will be made directly available it will obviate the need for FOIA requests – that’s the goal,” he said.