Day One: New FOIA Rules

Quick victory for transparency

Addressing his new White House staff in a ceremony this afternoon, President Barack Obama spoke repeatedly of the importance of open government to his new administration. “Transparency and the rule of law will be the touchstones,” he promised, shortly before signing several new executive orders, two of which were specifically designed to increase access to government information.

One will require Obama and past presidents to consult with the solicitor general and the attorney general before they claim privilege over information. I’ll be interested to learn the details on that one, once the White House updates its online listing of executive orders. (Currently, the site anachronistically claims, as it has since 12:01 on inauguration day, that “The President has not yet issued any Executive Orders.”)

Judging from Obama’s description, the second transparency-related order seems designed to reverse President Bush’s widely reviled guidelines on how information officers should respond to Freedom of Information Act requests. In the early days of the Clinton administration, Attorney General Janet Reno issued guidance encouraging disclosure of information upon request under FOIA, unless “foreseeable harm” would result. Attorney General John Ashcroft, early in the Bush administration, issued new policies that encouraged information officers to search the full reach of FOIA exemptions before releasing requested records, a signal that many interpreted as license to deny worthy requests as long as a technical excuse for a denial could be found. By 2006, a study of Justice Department data by the Coalition of Journalists for Open Government found that FOIA requests were taking longer and were less likely to be fully fulfilled than at any point since 1998, when the relevant data started being archived.

It looks like the Obama administration, with the swoop of a pen, has quickly restored the old Clinton rules.

Both the Clinton and Bush executive branch FOIA implementation instructions were issued by their attorneys general via memos, not by a Presidential executive order or directive. Alas, pending Eric Holder’s confirmation, America is running without an appointed attorney general, and that absence would be enough to explain why Obama made the FOIA change via an executive order.

But it’s worth remembering that an executive order or directive is quite a different thing, both in force of law and in symbolic importance, than a memo from a cabinet official. “An executive order is much stronger medicine. It is a directive from the president to government to do the following unless you’re otherwise prohibited by law,” says David Vladeck, a law professor at Georgetown who has litigated many FOIA cases, and who says he has discussed the administration’s FOIA plans with members of the transition.

The Ashcroft and Reno memos had great impact, but they merely outlined the extent to which the Justice Department would go in court to defend other branches’ FOIA decisions. And those two yo-yoing memos show how easy it is to revoke guidance via memo.

Rolling back Obama’s new executive directive on FOIA will be harder, if only because it’s a step that would bring far greater attention. “This is something he wants the next president to have to rescind,” says Vladeck. “He takes this very personally, and he wants his name on this, not Eric Holder’s.”

In restoring the Reno standard—a move that CJR, among many other voices, called for—on his first full day in office and via such a high profile legal instrument, Obama has struck a quick and prominent victory for government openness. Let’s hope it’s one of many to come.

Updated with new information at 3:15pm and 4:45.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.