Putting flesh on the FOIA bones

From the Spring 2009 issue of The News Media & The Law, page 13.

The Obama administration’s promises to increase transparency in government gained strength during Sunshine Week in March when Attorney General Eric Holder issued a far-reaching memo for agencies on the Freedom of Information Act.

Guidance on how to implement the policies in the memo followed in April from the Justice Department’s Office of Information Policy, which oversees FOIA for all executive branch agencies.

“The articulation of the policy has been fairly good, starting with the president, then fleshed out by the AG and then … with the OIP guidance,” said David Sobel, an attorney for the Electronic Frontier Foundation. “All of which I think are very positive.”

But even with the increasingly detailed prescriptions for government’s approach to FOIA, it remains unclear how the rhetorical changes will affect the processing of actual requests.

Restoring access

Holder’s memo on FOIA restored a presumption of access to and disclosure of information, which had been the standard under the Clinton administration. President Bush took the position that his administration would defend the withholding of documents under FOIA whenever there was a “sound legal basis” for doing so.

In January, soon after taking office, President Obama issued his own directive on transparency in government. “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails,” Obama said. “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

Holder’s memo expanded on that. The attorney general said the Justice Department would defend an agency’s decision to withhold documents in only two situations: If the “agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions,” or if the “disclosure is prohibited by law.”

The memo went on to direct Justice Department attorneys to review pending FOIA lawsuits “where practicable” for cases in which government information could be released under the new guidelines.

EFF has yet to see that translate into much of a difference in its litigation. In one of the organization’s lawsuits, the FBI told the judge it didn’t want to change its position on any of the documents at issue. In others, the Justice Department has yet to act, though Sobel said it still could happen.

It’s also not readily apparent how exactly the changes will affect day-to-day processing of FOIA requests. The Justice Department conducted training at the end of March on the new guidelines and the American Society of Access Professionals, an association primarily of government employees who work on FOIA requests, followed in early May with its own conference and training.

In its training materials and the later guidance for all federal government employees, the Office of Information Policy emphasized that the memos were “a sea change in the way transparency is viewed across the government.”

The office’s directions went on to say agencies had new requirements to use technology to disclose information and post documents online in advance of FOIA requests.

Indeed, many FOIA advocates have been pushing for proactive online disclosure by agencies — a requirement first tacked onto FOIA in its 1996 amendments. Those changes had been largely ignored by agencies, according to studies by non-profit groups such as the National Security Archive.

Beneath the access talk

For all the fanfare, though, it may be hard to measure the effect of memos like Holder’s and Obama’s.

It’s still debated in the open government community how much effect even the FOIA memo issued by Attorney General John Ashcroft during the Bush Administration had on agency decisions. The National Security Archive released a study in 2003 showing agencies had widely divergent reactions to it: “Some agencies concluded the Ashcroft memo represented a ‘drastic’ and ‘fundamental’ change; others saw no change or said ‘Yeah. OK’ when asked about impact,” the Archive reported in 2003. “Most agencies (17 out of 33) just forwarded copies of the memo to FOIA officers without changing regulations, guidance or training materials; and one summarized the prevailing feeling as ‘more thunder than lightning.’”

During a Sunshine Week conference this year, Daniel Metcalfe, the retired director of the Office of Information Policy at the Justice Department — previously known as the Office of Information and Privacy — said that agency reaction to the Ashcroft memo was minimal because the office did not try to implement the Ashcroft memo in the same way it had implemented the Clinton administration’s policy on FOIA.

Yet, many requesters perceived a clampdown by agencies under Bush in response to FOIA requests.

Beyond how forthcoming government is, though, one of the most critical problems in FOIA administration has been agency backlogs in processing requests. Many open government advocates and agency staff attribute the delays to a lack of FOIA resources at the agencies.

On that score, the Holder memo says agencies should prioritize FOIA: “In recent reports to the Attorney General, agencies have noted that competing agency priorities and insufficient technological support have hindered their ability to implement fully the FOIA Improvement Plans,” Holder said. “To improve FOIA performance, agencies must address the key roles played by a broad spectrum of agency personnel who work with agency FOIA professionals in responding to requests.”

Still, agency budgets are tight these days, and the rhetoric can only go so far.

“I would like to see them put their money where their mouth is,” Sobel said.

Transparency groups are pushing for increased staffing in agency FOIA offices and better investments in technologies that could cut down processing times and improve search techniques.

Off to a strong start

For all that has yet to be seen, the Obama administration won praise for its initial decisions to release two very controversial sets of documents — the Office of Legal Counsel’s memos on torture and photos of abuse in U.S.-held prisons in Iraq.

At first in both cases, the administration emphasized that the circumstances surrounding those documents made them unique, involving policies that have since been disavowed. But the releases may not be as precedent-setting as many open-government advocates hope.

Sobel cautioned that government watchers should “not get too caught up in the very positive rhetoric like the torture memos.”

Sobel was perhaps foreshadowing the change in administration policy announced May 13 when the White House decided to instead fight the release of the torture photos. Obama said he the release of the photos could hurt troop morale, and that the Justice Department was not ruling out an appeal to the Supreme Court.

“There’s no legal basis for withholding the photographs,” Jameel Jaffer, director of the ACLU’s National Security Project, told the Los Angeles Times on hearing of the change “so this must be a political decision.”