Under Obama, the Freedom of Information Act is Still in Shackles

By TREVOR TIMM, Electronic Frontier Foundation
EFF.org
Feb. 01, 2012

Three years ago this past weekend, on his first full day in office, President Barack Obama issued his now infamous memo on transparency and open government, which was supposed to fulfill his campaign promise to lead the "most transparent administration in history." Instead, his administration has been just as secretive--if not more so--than his predecessors, and the Freedom of Information Act (FOIA) has become the prime example of his administration's lack of progress.

In 2009, Obama made FOIA reform the centerpiece of his open government agenda. "My Administration is committed to creating an unprecedented level of openness in Government," he said, while laying out principles he wished to see his agencies adopt in the proceeding months. In March of 2009, Attorney General Eric Holder issued what the Justice Department called "comprehensive new Freedom of Information Act (FOIA) guidelines." Holder ordered that all executive branch departments and agencies were to apply "a presumption of openness" in response to FOIA requests.

In 2010, EFF's senior counsel David Sobel testified to Congress, calling on the Obama to lead by example if they wish to change the FOIA process.

Unfortunately, secrecy won out in the Obama administration almost immediately. In the early months of his presidency, a court ruled that the administration would have to turn over photos related to the Abu Ghraib torture scandal in response to a FOIA request. Knowing they'd likely lose the appeal, Obama supported a new law that could keep information secret even when FOIA would otherwise require disclosure. The bill's only intention was to create a way to shield photographs of detainee abuse from public disclosure.

President Obama also refused at first to release White House visitor records, a practice for which his predecessor, George W. Bush, was pilloried. The Obama Administration appealed a court's ruling that the visitor logs were subject to FOIA. In September 2009, Obama reversed course and agreed to release voluntarily White House visitor records going forward. But in 2011, the Administration was still fighting in court to keep the logs before Obama's reversal a secret.

The Associated Press looked at the administration's commitment to transparency in 2010 and concluded Obama was using FOIA exemptions to withhold information from requesters more than Bush did in his final year, despite receiving fewer overall requests. And one of the most frequently used exemptions was one Obama explicitly told the agencies not to use: the "deliberative process" exemption, which allows the government to withhold documents dealing with its decision making process. In Obama's first year in office, the use of the exemption skyrocketed from 47,395 times in 2008 to 70,779 times in 2009.

Worse, more than a year after Obama and Holder's memos, a National Security Archive study found "less than one-third of the 90 federal agencies that process such FOIA requests have made significant changes in their procedures." Even FOIA requests on transparency were held up:

The AP is still waiting--after nearly three months--for records it requested about the White House's "Open Government Directive," rules it issued in December directing every agency to take immediate, specific steps to open their operations up to the public.

Yet around the same time, when President Obama was asked a question at a townhall about why his administration wasn't more transparent, he responded by saying it was the most transparent in the modern era. What was his first reason? The administration's release of White House visitor records--the same records they went to court to fight to keep secret. The President also bragged: "We've revamped the classification system so it's not used to hide things that might be embarrassing to us." Which, of course, is not true either. As EFF has pointed out, government secrecy and overclassification has reach absurd levels under Obama.

More damage was done to FOIA in the Dodd-Frank bill. A little-noticed provision of the recently passed financial-reform legislation stated that the SEC "no longer has to comply with virtually all requests for information releases from the public, including those filed under the Freedom of Information Act." Other media organizations have lodged public complaints about FOIA procedure at the State Department, the Department of Homeland Security and even agencies dealing with health and scientific issues like the EPA and NASA.

EFF has experienced many of these problems first hand. When we sued the FBI after it was revealed they were systematically abusing their National Security Letter authority, the bureau redacted the vast majority of the thousands of pages requested. In another case, it was clear the FBI was redacting arbitrarily information when it wasn't appropriate. The DHS singled out EFF, along with other activist groups and media representatives such as the ACLU, EPIC, Human Rights Watch, and AP, for an extra layer of review on its FOIA requests. EFF sued just to find out the names of the members of Obama's Intelligence Oversight Board.

But by March 2011, only 49 of the 90 federal agencies had followed any "specific tasks mandated by the White House to improve their FOIA performance." The National Security Archive found in July that federal backlogs of FOIA requests are growing. A Study released in December of this year by Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org found the administration was withholding information using nine of the most common exemptions 33% more than George Bush's last full year in office.

But perhaps the worst violation of Obama's open government principles was the deplorable attempt by the Justice Department to change the DOJ's own FOIA regulations. Under the proposed rule, instead of refusing to confirm or deny a document is in the Department's possession, the agency could "respond to the request as if the excluded records did not exist." The Los Angeles Times called it an "outrageous proposal" that "provides a license for the government to lie to its own people and makes a mockery of FOIA." After near universal outcry, including pressure from Congress, the Justice Department scaled back its rules. But as the Sunlight Foundation said, the Justice Department's revised FOIA rules were still "worse than reported" and allow reviewers to dismiss requests for a host of trivial reasons. Obama's Justice Department seemed intent on killing the very law it championed at the start of his administration.

The Freedom of Information Act has been hailed by open government advocates as "one of the most significant laws ever passed by the U.S. Congress," yet its passage and survival has been fought by Presidents for more than forty years. The bill, as a significant check on executive power and secrecy, was originally opposed by Lyndon Johnson, yet was signed into law in 1966. When Congress strengthened the act after the Watergate scandal, President Ford vetoed it on the advice of his then-chief of staff Dick Cheney. Thankfully, Congress overrode his veto. Reagan's Attorney General Edwin Meese was so opposed to FOIA, despite its being law for more than 20 years, he wrote a memo telling the Justice Department to disregard essentially requests it disliked.

President Obama promised to change all that. Unfortunately, it's clear many of his pledges have been broken or ignored, turning his declaration that he would lead the "most transparent administration ever" into a punch line rather than a re-election slogan.