Attorney General Eric Holder issued new guidelines March 19 regarding release of non-classified information to the public under the Freedom of Information Act.
That statute, better known as the FOIA when it was first approved in 1966, says all federal documents should be made public on request unless there are strong grounds – which are described in detail in the law – for keeping them behind closed doors.
Holder’s memo to executive branch departments and agencies rescinded more restrictive rules issued by his predecessor, John Ashcroft in 2001. Holder said he wanted to restore “the presumption of disclosure that is at the heart of the Freedom of Information Act.”
But despite Holder’s memo, federal gatekeepers are still holding on to documents that should be made public.
For example, The Examiner filed a FOIA request for all correspondence relating to the Federal Aviation Administration’s “glider exemption” – which specifically excludes non-motorized gliders from an FAA requirement that all aircraft carry transponders.
This exemption has been in effect for years despite two recommendations from the National Transportation Safety Board (NTSB) that it be repealed. The NTSB was concerned because of multiple mid-air collisions involving gliders and powered aircraft, including commercial jets, that killed two people and injured nine.
Last year, 31 near misses between motorized aircraft and gliders were reported.
The FAA’s initial response to the Examiner FOIA included some of the requested documents, but the names six people who wrote to the FAA on the issue were redacted. Holder’s memo requires full disclosure unless foreseeable harm would result, or release is specifically prohibited by law.
Neither condition applied in this case. In fact, the most foreseeable harm is to aircraft occupants whom, thanks to the glider exemption, remain at risk today.
Blacking out the identity of those involved in a public debate is also inconsistent with the FAA’s own policy; the aviation agency routinely posts identifying information on its website when people comment on items in the Federal Register.
Responding to NTSB recommendations is factually indistinguishable from this practice. Furthermore, it is impossible to gauge the value or veracity of the comments if the author’s identity remains a secret, particularly if they have financial ties to the glider industry.
The Columbia Journalism Review also found six loopholes in the pending litigation section of Holder’s memo. Apparently there’s no presumption of disclosure if it’s not “practicable” or if “there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.”
So it appeas that under the Obama administration, the public is entitled to know … some of the time. And there’s sorta more transparency than there was during the Dark Ages of the Bush administration. But truly open government is still a long ways off.
Barbara Hollingsworth is local opinion editor of The Washington Examiner.
