The Freedom of Information Act and the Presidency

During my undergrad days, I did a stint as a lowly intern in a mammoth sized bureaucracy in Washington, D.C.  The building that housed the “Department” was built in the 1950s, and it smelled that way, too.  One of my main tasks, other than attending endless meetings on subject matter about which I knew or understood little, was to organize and review files, also from the 1950s, for security declassification and preparation for response to Freedom of Information Act (“FOIA”) requests.

Signed into law by President Lyndon B. Johnson in 1966, the purpose of FOIA is to ensure public access to government records.  Transparency is critical in a republic, and our ability to restrain government is dependent upon knowing what government is doing.  For that reason, FOIA requires the government to give access to the public to records requested.  The burden is on the government to show why certain records should not be made public, demonstrating that information falls one or more of nine exceptions carved out in statute.  Broadly speaking, the exceptions deal with privacy of individual government employees, national security, and confidential financial and trade information. Ultimately, citizens can enforce FOIA requests in federal court.

Most President’s get flak for their claim of exemptions from FOIA.  It comes with the territory, I suppose.  Reagan restricted it on national security grounds, as did Bush just after 9/11.  Recently, though, the Obama Administration has been under attack, too.  During the campaign, Barack Obama criticized the Bush Administration’s lack of openness.  Now, however, Slashdot and the AP are reporting that denial of FOIA requests have risen dramatically since the Obama Administration was sworn in.

“Agencies under the Obama administration cite security provisions to withhold information more often than they did under the Bush administration. For example, the ‘deliberative process’ exemption of the Freedom of Information Act was used 70,779 times in 2009, up from the 47,395 of 2008. Amusingly, the Associated Press has been waiting three months for the government to deliver records on its own Open Government Directive.”

The Open Government Directive, an Obama program specifically targeted at making government more transparent, is refusing to allow the Associated Press see records on itself.  Does this strike anyone as somewhat ironic?

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