It has received the least attention of his first-day decisions, but President Barack Obama’s memorandum on reviving the Freedom of Information Act stands as the clearest signal yet that his campaign talk about “a new era of open government” wasn’t just rhetoric; it’s for real.
The key phrase comes right at the top: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”
Later in the memo: “All agencies should adopt a presumption of disclosure. … The presumption of disclosure should be applied to all decisions involving FOIA.”
Furthermore, “In responding to requests under the FOIA, executive branch agencies should act properly and in a spirit of cooperation, recognizing that such agencies are servants of the public.” In fact, “All agencies should take affirmative steps to make information public. They should not wait for specific requests from the public.”
This could not be clearer. The new president was calling for a complete reversal of the Bush administration’s directives on this matter—and a restoration of the Freedom of Information Act’s original purpose.
The Bush era’s tone was set in October 2001, when then-Attorney General John Ashcroft issued a memo to all federal agencies, assuring them that if they were sued for refusing to release documents under the FOIA, the Justice Department would defend them in court as long as their decision had a “sound legal basis.” This reversed a guideline, signed by President Bill Clinton in 1993, noting that the Justice Department would defend agencies’ refusals only if releasing the documents would cause “foreseeable harm.”
Ashcroft’s guidance was reinforced in March 2002, when Bush’s chief of staff, Andrew Card, issued a memo urging agencies to protect information that was “sensitive,” even if it was unclassified.
Both memos were written in the aftermath of Sept. 11; the impulse behind them was, up to a point, understandable. However, the bureaucrats who control the documents—cautious by nature and sensitive to signals from on high—took the memos as cues to tighten the lid not just on legitimate national-security secrets (which the FOIA had always exempted from routine disclosure) but on everything.
The consequences were dramatic. From 1995 to 2001, federal agencies declassified 1.15 billion pages of documents under the Freedom of Information Act—an average of 190 million per year. From 2002 to 2006, after Ashcroft issued his memo, agencies declassified 182 million pages in total—an average of just 36 million per year, less than one-fifth the volume.
Even these statistics understate the stranglehold because, in many cases, even after the documents were declassified, the relevant agencies—the Pentagon, the CIA, the SEC, or whatever—refused to release them.
Part of the problem was, and still is, sheer overload. Hundreds of millions of classified documents, many dating back a quarter-century or more, are stacked up in the archives, awaiting review. Countless FOIA requests submitted by individuals or public-interest groups have gone unanswered for years—in some cases for more than a decade. The original law, passed in 1967 and strengthened in 1974 and again in 2002, required at least an acknowledgment of the request within 10 days. (It is worth noting that President Gerald Ford vetoed the ‘74 expansion, on the advice of Donald Rumsfeld, his chief of staff; Rumsfeld’s assistant, Richard Cheney; and the Justice Department’s chief counsel, Antonin Scalia. Congress overrode the veto.)
But much of this delay is by design. Some agencies have been conscientious in filling their statutory duties, but, especially since the Ashcroft memo, many others have simply ignored the law, leaving their FOIA offices vacant and no longer training officials in how to review FOIA requests.
In 2006, the National Security Archive, a private research organization headquartered at George Washington University, sued the U.S. Air Force for failing to respond to several FOIA requests. A federal judge ruled that the Air Force had engaged in a “pattern and practice” of neglect on the issue. Since then, the Air Force has cleaned up its act, retrained personnel, and resumed serious reviewing. Other agencies have stepped up their training, too—but in the opposite direction, ordering their FOIA officers to find legal rationales for withholding everything (the natural bureaucratic tendency), knowing that the Ashcroft memo assures them of executive-branch backing at the highest level.
But that was before President Obama’s memorandum.
The Obama memo doesn’t lay down new law. But it does order his attorney general and his budget director to devise new guidelines and regulations, which will have the force of new law—guidelines based on a presumption of disclosure, the exact opposite of the Bush-Ashcroft guidance.
Again, a presumption is not a requirement; the statute’s exemptions covering genuine national-security secrets will no doubt remain in place. But presumptions matter to bureaucrats; they lay down what is expected; they set the boundaries of safe behavior. Under Bush-Ashcroft, the presumption was: When in doubt, classify and lock the archives down. Bureaucrats are always in some doubt, so they slammed the vaults and hid the keys. Obama is saying: When in doubt, if there’s no demonstrable harm, open the gates. (One line of his memo stresses that government should not keep information secret merely because of “speculative or abstract fears.” [Italics added.])
In January 2008, an obscure federal entity called the Public Interest Declassification Board—a group of nine specialists, mainly academics and former officials, five appointed by the president, four by Congress—submitted a report to President George W. Bush, proposing more than a dozen ways to make the process more sensible: consolidating authority in the National Archives, creating centralized data banks, automatically declassifying almost everything that’s more than 25 years old, and so forth.
Bush ignored it. Obama shouldn’t. It spells out how to translate his principles into policies.
In the early 1980s, while researching a book about the history of American nuclear strategy, I filed a lot of FOIA requests with the Department of Defense. One day, I received a call from a major, saying he was my FOIA contact officer. He was phoning just to introduce himself and to assure me that he’d argue vigorously on my behalf, not only to declassify the documents I requested but also to waive the search fees on the grounds that release of the material was in the public interest. (Fee waivers were once common for journalists and authors. Now fees are charged to everyone, and up front, not so much to reimburse for searches as to set up a toll booth to dissuade most citizens from even trying to get information.)
I didn’t get all the documents I’d requested, but I got most of them. The secrets they spilled were about weapons, war plans, and bureaucratic battles 20 to 30 years earlier, in the 1950s and ‘60s. Their declassification filled a lot of gaps in our knowledge of history, which arguably helped readers understand certain aspects of the present. But they revealed nothing that would have remotely assisted our enemies, then or now.