February 02, 2009

President Obama's FOIA Order

On January 21, 2009, President Obama issued a Presidential Memorandum that I’m hopeful will be the start of undoing much of the excessive secrecy practiced by the previous administration. The memorandum, established that the Freedom of Information Act (FOIA) “should be administered with a clear presumption: In the face of doubt, openness prevails.”


A recent CPR report, By the Stroke of the Pen: Seven Executive Orders to Launch the Obama Agenda, had recommended that President Obama take this exact step. The report also recommends additional actions that would undo other policies adopted by the Bush administration that made government less transparent. Another Presidential Memorandum, Transparency and Open Government, sets the stage for additional steps to be taken, although it does not commit the administration to adopt any specific policies to foster more transparency.


While Congress created exemptions to FOIA disclosure, it also for the most part made those exemptions discretionary, signaling that they were to be used in a manner consistent with the goal of maximum disclosure of information to the public. Nevertheless, the issue of how much information to disclose has become a political ping-pong ball between Republican and Democratic administrations. When George W. Bush took office, then-Attorney General John Ashcroft issued a memorandum instructing agencies that the Department of Justice (DOJ) would defend decisions not to release information “unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.” President Obama’s order reverses this policy and restores the policy followed in the Clinton administration, which also adopted a “presumption of disclosure.”


I am not sure why Republican administrations reflexively oppose open government in this context. It is true that each of the exemptions represents a decision by Congress that, on balance, keeping information secret is in the public interest despite the advantages of open government and greater transparency. But, if there is some question whether an exemption applies in a particular situation, it is more consistent with the purpose of the FOIA to decide, as President Obama decided, that “openness prevails.”


The CPR report also recommends that the President should forbid agencies from taking advantage of loopholes that limit the transparency provisions of the Federal Advisory Committee Act (FACA), and that he should improve the transparency of regulatory review by the Office of Information and Regulatory Affairs (OIRA). I have described in greater detail each of these recommendations on a previous post on CPRBlog. For now, I am encouraged by the commitment to transparency in Transparency and Open Government, the other Presidential Memorandum on government transparency, but it remains to be seen whether the administration will take these steps.

Sidney Shapiro, CPR Member Scholar; University Distinguished Chair, Wake Forest University School of Law. Bio.

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