Freedom of Information Under Obama
by Harry Hammitt
Since its passage in 1966, the federal Freedom of Information Act (FOIA) has been the primary vehicle for forcing federal agencies to disclose information. It remains today the most important right of access to government information, but its usefulness has sometimes been undercut by the rapid growth of government information available online. Nevertheless, the barometer by which access advocates measure the federal government’s performance remains its commitment to FOIA. The Obama administration raised the bar substantially when on its first day in office President Obama issued the first-ever presidential memorandum on FOIA emphasizing strongly that disclosure would be the default position of the administration and that agencies should err on the side of disclosure rather than opting to withhold information. The President’s memo was followed within two months by an implementing memo issued by Attorney General Eric Holder that reiterated Obama’s earlier memo and committed the administration to having the most open government in U.S. History.
Unfortunately, the stirring words have not been translated into action and it is the shortcomings of the Obama administration that have rankled access advocates the most. Unsurprisingly, the Obama administration has learned the lesson that words and policies alone are not enough to change attitudes that have been embedded for decades. Much of that problem—while clearly bureaucratic in nature—lies in the contradictory ways in which FOIA can be interpreted.
The animating principle of the FOIA is that the federal government is the custodian of vast amounts of information and that any person should have the right to access any federal record. So, information belongs to the people and they have a right to access it. That right is exercised by a person who makes a request to a federal agency. What constitutes a federal agency is defined in the statute as well as what should be considered a record. So far, so good. But Congress recognized that some types of records should be protected. As a result, Congress included nine different exemptions—although the law enforcement exemption consists of six separate subparts—which agencies may invoke to protect all or part of a record. Generally, the exemptions are discretionary and agencies are not legally bound to claim them. However, this rule is subject to a number of exceptions.
This statutory scheme sets in motion the two contradictory perspectives on access to government information. On the pro-disclosure side, it seems readily apparent that Congress intended FOIA to serve as a vehicle by which any requester could gain access to government information and that the exemptions were supposedly to be applied sparingly, maximizing the amount of information disclosed. But an equally logical argument can be made that Congress identified at least nine separate exemptions—one exemption specifically facilitates the use of withholding provisions contained in other statutes, thus expanding the universe of actual exempting provisions—and told agencies to withhold information that fell within the parameters of those exemptions. From that perspective, FOIA becomes a limitation on the disclosure of certain types of information and requesters are only entitled to information that falls outside the exemptions.
Unfortunately, throughout FOIA’s lifetime the idea that disclosure is strictly limited by the exemptions has routinely taken precedence over the idea that maximum responsible disclosure most closely complies with congressional intent. This has been particularly true in the realm of personal information where exemptions designed to protect information whose disclosure would constitute a clearly unwarranted invasion of privacy have gone from being interpreted narrowly–limited to intimate details whose disclosure would be considered an invasion of privacy—to a much broader interpretation today where almost any personally identifying information—including routine job descriptions—are withheld.
But where access advocates expected the most change from the Obama administration’s policies was in the area of information that is considered privileged. The deliberative process privilege is a privilege recognized almost solely as protecting government discussions. The idea behind the privilege is that the government should be able to discuss policies in an informal setting without the fear that outsiders will be second-guessing their deliberations. This privilege is so broad by its nature that it encompasses much of the internal workings of government and agencies frequently invoke it with little or no consideration of whether there is a legitimate need to shield such information. Although agency policies are typically made public once they are adopted, because of the deliberative process privilege there is often little ability for the public to understand how a decision was made, the range of options discussed, and the reasons for choosing one option over others. The Obama administration has emphasized that agencies should withhold deliberative process materials only when they can articulate a foreseeable harm from disclosure. However, one of the harms identified by the courts has been to the integrity of the process itself. In practice, this means the disclosure of any records that fall within the privilege would cause harm to agency decision-making. As a result, the foreseeable harm test has been much less useful than advertised.
FOIA has clearly been something of a disappointment under Obama. He has said the right things, but actions speak louder than words and the administration’s actions have frequently undercut the power of Obama’s words.