'Most Transparent' President Signs Into Law FOIA Reform Bill That Won't Affect His Administration
from the 'I'll-take-the-credit-but-not-the-responsibility.' dept
Nearly a half-century to the day after President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (FOIA) into law, granting the public the right to access federal government records, President Barack Obama signed into law a historic FOIA reform bill that aims to make it easier for the public to file FOIA requests and obtain government documents.
While this is cause for some celebration, let’s not overlook what’s actually happened here. Obama has signed a bill he can saddle his successors with. Neither leading candidate seems particularly amenable to openness and transparency — not Donald Trump with his big ideas on how to change laws to make things better for him rather than for the nation, and not Hillary Clinton, who set up her own email server to route around FOIA requests.
While touting his administration as the Openest Place on Earth, FOIA responsiveness actually took several steps backward during his tenure. His administration also spent several years fighting FOIA reform, something that was ironically uncovered by documents obtained via a FOIA request.
What this one-foot-out-the-door signing does is provide the Obama Administration with a last-minute burnishing of its transparency record — a brief hat tip to openness as he exits office with a largely-unearned reputation for government accountability.
Moving past the negatives, the new law institutes some interesting new measures, including the somewhat controversial “release to one, release to all” policy. This will provide for the public release — via agency websites — of any documents obtained by any FOIA requester. This is good news for the public, which won’t have to rely on news agencies for controlled release of FOIAed documents. For news agencies, and the journalists putting in the effort to ask the right questions and push agencies into compliance with requests, this undercuts any level of “exclusivity” they may have used to attract more readers.
“In addition to the feedback OIP [Office of Information Policy] received directly, several journalists wrote about the pilot and voiced their potential concerns with the adoption of this policy,” the report said. “The thrust of many of the journalists’ concerns, although not always exactly the same, was an unease that posting the records requested by journalists without giving them any lead time with sole access to the records, could take away their ‘scoop’ or ‘exclusive’ story. Additionally, there were concerns that routine posting of FOIA- processed records would act as a disincentive for journalists to use the FOIA given that they often invest considerable time and resources into building a story and those efforts would be impacted by loss of the ability to be the first with access to the requested records. At the same time, there were others in the community of journalists who applauded the idea of agencies posting all FOIA responses.”
FOIA warrior Jason Leopold is one of many who have commented on this policy, requesting a “lead time” of one week between the requester obtaining the documents and full release to the public. This is not an unreasonable request — especially when Leopold works for sites like Vice which posts documents it receives when it reports on them. Other news agencies — far too many to count/name-and-shame — do not publish the documents they obtain, forcing readers to accept their interpretation of the content.
In terms of the greater public good, the new policy is the better policy, even if it contains the potential to strip away exclusivity. The Freedom of Information Act’s purpose is to make the government more transparent and accountable, not act as a lead generator for news agencies. Journalistic agencies are also a huge contributor to holding the government accountable, so it’s difficult to flatly state that FOIA enthusiasts like Leopold should just suck it up and deal with the new reality. But it’s also impossible to ignore the fact that windowed releases of FOIA docs is just another form of gatekeeping that separates the public from its public servants, even if the separation is only temporary.
Also of note is the law’s revamping of Exemption B(5), which is a current government favorite:
The bill radically overhauls one of the FOIA’s most abused and overused exemptions: B5, referred to by open government advocates as the “withhold it because you can” exemption. Currently, when government agencies cite B5, which applies to internal deliberations and attorney-client privileged communications, government agencies can withhold records under that exemption forever. Under the FOIA Improvement Act, however, government agencies can withhold records pertaining to internal deliberations for only 25 years. Attorney-client privilege records, which also fall under B5, will not be part of the reform.
And, because the process of filing a FOIA request is often less than straightforward, the law provides for the creation of a single FOIA request portal — one that will hopefully streamline the process and allow for easier tracking of submitted requests.
Undoubtedly, agencies are already working on ways to comply with the new law without actually being more open and transparent. Certain agencies — like the Office of the Director of National Intelligence and the DOJ — will be sure to use the new “release to all” policy to “scoop” journalists who have spent years (and possibly thousands of dollars in fees/litigation expenses) forcing embarrassing documents out of their hands by dumping these into the public’s lap prior to news agencies’ publication dates. This is a net win for the general public, but it also creates a route for agencies to act out of sheer vindictiveness.