President Obama’s first acts in office included issuing two memoranda and an executive order directing the government to embrace a new policy of openness and transparency. As someone who assists organizations whose requests under the Freedom of Information Act have been denied, these documents have the potential to make a world of difference.
As background, the Freedom of Information Act lists various categories of documents that are exempt from disclosure, but most of those categories are discretionary. That is, the government can choose to disclose documents that fall under these exemptions. But the Bush Administration’s FOIA policy directed the government to defend any discretionary withholding if there was a reasonable basis in the law to do so. That policy hardly reflects the presumption of disclosure that FOIA embraces.
President Obama, as he put it, is “usher[ing] in a new era of open Government.” He directed that “[i]n the face of doubt, openness prevails… The presumption of disclosure should be applied to all decisions involving FOIA.” In this way, President Obama’s memoranda implement many of the suggestions made by Public Citizen, joining over 60 other organizations, in transition recommendations. I believe this directive will have practical effect.
For instance, just recently, the Department of Energy proposed a rulemaking which would eliminate its regulation calling for discretionary disclosures under the Freedom of Information Act when disclosure is in the public interest. In proposing this revision, DOE reasoned that Bush administration policies favoring secrecy limited discretionary disclosures. We submitted comments on the proposed rule, opposing this change as contravening the purpose of the Freedom of Information Act.
Now, however, the DOE cannot assert that its public interest disclosure provision is inconsistent with executive policy. President Obama himself, when signing these memoranda, said that “the mere fact that you have the legal power to keep something does not mean you should always use it.” Hopefully this new policy will persuade DOE to keep its current regulations encouraging disclosures in the public interest.
On an individual case-by-case basis, I think this policy will also have an impact. The Coalition of Journalists for Open Government conducted a study on the effect of the Bush administration’s FOIA policy after his first term. It found that in 2004, the government invoked FOIA exemptions in response to requests 22% more than in 2000, even as the overall number of requests fell. Notably, discretionary withholdings accounted for a large portion of that increase. For example, exemption 5, which is discretionary, was invoked twice as frequently in 2004 as in 2000.
Finally, President Obama’s memoranda promoted affirmative disclosure; that is, encouraging agencies to make information publicly available (usually online) without waiting for a FOIA request. Anecdotally, we have noticed that in the last eight years, information that used to be regularly disseminated became more and more difficult to find. President Obama’s transparency memo indicated that his administration should go so far as to solicit public input to determine which information was most important to make available and post those materials on the internet.
I expect and hope that President Obama’s clear statements of policy and mandate to the Executive branch will result in a sharp downturn in the numbers of discretionary withholdings and an overall increase in the availability of government information. In the words of President Obama as he signed these documents: “The way to make government responsible is to hold it accountable. And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they’re being made, and whether their interests are being well served.”
Public Citizen will no doubt play a crucial role in holding President Obama’s administration to these lofty goals. I’m looking forward to my work in this new era.