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Dec. 18, 2013

Judge Orders Release of Presidential Policy Directive

Government Taken to Task for Violating Freedom of Information Act

WASHINGTON, D.C. – In a case that has important implications for public access to government policies and decisions, a federal district judge has ruled that the Freedom of Information Act (FOIA) requires the federal government to release to the public the Obama administration’s much-touted Presidential Policy Directive on Global Development.

The decision is the first of its kind to consider whether a presidential policy directive can be withheld from the public under the “presidential communications privilege.” A presidential policy directive is a type of document issued by the president that operates much like an executive order but is not published in the Federal Register.

In 2010, President Barack Obama went to the United Nations to publicly announce his issuance of the directive on global development, including foreign aid, which is not classified. At the time, Obama said that the United States was “changing the way we do business,” including altering “how we define development” and “how we view the ultimate goal of development.”

The administration sought $27 billion to support the directive, enlisted more than two dozen federal agencies to implement it, and released a fact sheet and numerous other public statements about it.

The Center for Effective Government, a nonprofit public interest organization, sought a copy of the directive by filing FOIA requests with the State Department and the U.S. Agency for International Development. Represented by counsel from Public Citizen, the Center filed suit after both agencies denied its FOIA requests and mediation attempts failed.

In her decision Tuesday, Judge Ellen Huvelle, a federal judge in the District of Columbia, rejected as “limitless” the government’s argument that any communication originating with the president may be kept secret, even if the communication has legal effect and is implemented broadly throughout the executive branch. She stated that “the government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight … to engage in what is in effect governance by ‘secret law,’ ” and concluded that such a position is inconsistent with FOIA’s purpose of transparency.

“We are pleased to see that the court recognized the government’s position in this case for what it is: a remarkable and unlawful attempt to keep secret a broad federal policy,” said Julie Murray, an attorney with Public Citizen and counsel for the Center for Effective Government. “The court’s decision is a resounding win for the principle of government openness and a reminder to the Obama administration that its commitment to transparency must come not just in words, but in deeds.”
 
Gavin Baker, open government policy analyst at the Center for Effective Government, added “We have a right to know how our government is spending public resources. This directive guides millions of dollars in spending; now the American people will get to see how it is being allocated. We hope this decision will encourage the administration to make other policy directives public as well, in order to open government to citizen oversight.”

The case is Center for Effective Government v. U.S. Department of State, et al., No. 13-414 (D.D.C.). More information about the case, including the court’s opinion, is available here.
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