By Lena Williams, Guild-CWA :: All this time open government advocates thought Congress was to blame for refusing to bring bills to reform the Freedom of Information Act to the floor for a vote.
No one could figure out why the bipartisan reforms, unanimously passed by the House and the Senate in 2014, had been held in limbo since then. Some suspected special interest groups, including state and local governments and law enforcement agencies, were lobbying to deny the public greater access to information held by government agencies. Others assumed Congress was dragging its feet on a FOIA reform bill that was not a priority in an election year.
In the midst of the confusion, the Freedom of the Press Foundation received an anonymous tip that it wasn’t Congress holding the FOIA hostage but the Justice Department, the very agency charged with enforcing provisions of the FOIA.
The tipster told the nonprofit organization, which supports journalism in the public interest, that the bills didn’t become law because they were held up by then-Speaker of the House John Boehner and that Boehner was acting at the behest of a few federal agencies, chief among them the Justice Department.
The foundation filed a FOIA request seeking all emails and other communications about the bills that were sent between the congressional offices sponsoring the legislation and the DOJ.
It took nearly two years and a suit filed in federal court last December, but the press foundation finally received the requested materials.
They substantiated what the anonymous tip alleged: that the Obama Administration, the self-proclaimed “most transparent in history” was secretly working behind the scenes to kill the bill, and that the White House gave Justice legal ammunition and talking points to undermine its effectiveness.
The foundation shared the documents exclusively with VICE News, a current affairs news channel and website. On March 8, VICE published a detailed DOJ memo online that showed the administration opposed nearly every provision that would have made it easier for journalists, historians and the public to access government records.
“The Administration strongly opposes passage of H.R. 1211,” the memo states in its first paragraph. “The Administration views H.R. 1211 as an attempt to impose on the Executive Branch multiple administrative requirements concerning its internal management of FOIA administration, which are not appropriate for legislative intervention and would substantially increase cost and cause delays in FOIA processing.”
This from a president who promised on his first day in office in 2009 to “usher in a new era of open government.”
The memo goes on to say that the Obama administration is “committed” to improving FOIA administration across the government and in the past five years has “achieved many real successes, processing more requests, improving response time, and making more information available proactively.”
“As a result, the Administration believes that the changes proposed in H.R. 1211 are not necessary and, in many respects, will undermine the successes achieved to date by diverting scarce processing resources,” the memo states. “While there are some provisions in the bill that we do not object to, such as establishment of a FOIA Advisory Committee, and continued focus on the role of agency Chief FOIA Officers, such matters can be – and are already being –addressed administratively, without legislation.”
The memo fails to mention that government agencies have routinely denied FOIA requests under an entitled exemption known as the “deliberative process privilege.” That exemption covers inter-agency and intra-agency memorandums, attorney-client records, and letters and drafts such as an internal CIA study on the agency’s torture program because they are not “final decisions.”
The exception also excludes records more than 25 years old. The reform bill would have authorized release of records after 25 years.
“If this memo reflects thinking of the White House, then I have to question their commitment to transparency,” Anne Weisman, executive director of The Campaign for Accountability told VICE News. “The notion that these changes are going to increase the FOIA backlog, increase costs and increase problems with FOIA is ludicrous. The breadth of their objections and lack of evidence to back up their claims and their absolute opposition to codifying Obama’s memo expose the lie that is the administration’s policy.”
It’s disheartening, disingenuous and disturbing to discover that the Obama administration, which has publicly championed itself as a bastion of transparency in government, has privately worked to subvert a fundamental Constitutional principle: the people’s right to know.
“This FOIA reform bill was incredibly modest, had already been watered down, and had the unanimous support of both parties, something that, in today’s political climate, almost never happens,” said Trevor Timm, executive director of the press foundation. “Transparency advocates have been very cynical of the Obama administration’s claim that they’re the ‘most transparent ever’ but the fact that they opposed virtually every aspect of this bill is sadly a new low.”
The administration’s position has left even hardened veteran journalists like me at a loss for words.
If the administration thinks it can get away with pulling the wool over the eyes of the American public by suggesting, as it does in its memo, that it “strongly opposes” the bill’s addition of a “foreseeable harm” standard into the FOIA exemptions and that the existing exemptions are “fatally vague and subjective” it has another think coming.
Are we to believe that every single member of Congress failed to grasp the harm they were doing when they overwhelmingly approved the reform bills? Or that the administration has the best interests of its citizens in mind by opposing bills that would give them greater access to government records?
Ironically, if it weren’t for FOIA, the public never would have known about the White House’s unscrupulous campaign to kill the bill.
It’s no secret that the Obama administration has one of the worse records in history on transparency in government.
But no one would have envisioned that a president who came into office nearly eight years ago with great expectations would renege on a key promise he made to the American people.
It’s clear today that Obama’s legacy on the issue of transparency in government will not be considered one of his greatest achievements.