Congress has passed a new bipartisan Freedom of Information law that finally codifies the presumption that all government materials should be available to the public unless there are good, specific reasons why they shouldn’t.
President Obama encouraged federal agencies to adopt this presumption when he arrived in office in 2009. But putting the principle into law has been tricky, in no small part because Obama’s practice has been nearly the opposite of his promise.
Under the new bill, says the Electronic Frontier Foundation, “agencies cannot withhold records unless another law prohibits their disclosure or the agencies articulate how disclosure will harm an interest protected by FOIA’s exemptions.” It also sets a 25-year limit on how long the government can withhold records on the grounds that they would reveal too much about the deliberative process behind executive branch decisionmaking.
Obama says he will sign this bill, which is welcome. It’s also a huge change from 2014, when his Justice Department tried to stop FOIA reform, penning a tough memo against any legal codification of a “presumption of openness.”
This transparency bill is a rebuke to the practices of Obama’s administration which, the Associated Press reported in March, had censored materials or rejected FOIA requests 77 percent of the time, a record and an increase of 12 percentage points since Obama’s inauguration.
There are stories of a legion of agencies imposing unreasonable delays and making half-hearted searches for material responding to legitimate Freedom of Information requests. Obama’s EPA, State Department, Health and Human Services Department, IRS and others have routinely evaded public disclosure.
Two of Obama’s cabinet appointees, Hillary Clinton and Lisa Jackson, were caught using secret email accounts designed to shield their work correspondence forever from public scrutiny, or at least until long after they’d left office. Another, Marilyn Tavenner, was caught deleting emails. And emails at the IRS go missing every time Congress asks to see them.
Obama’s political appointees are the first known to have officially inserted themselves as an obstacle to the FOIA process. They have been caught deputizing agencies’ FOIA officers to delay sensitive requests and keep tabs on what reporters are trying to find that might embarrass the administration.
When confronted about this chicanery, the White House has worked furiously to create distractions. Spokesman Josh Earnest, for example, argued that the Freedom of Information Act itself is flawed because it exempts Congress.
Never mind that the Constitution deliberately and specifically exempts Congress from oversight of the lawmaking process for good reasons, respecting the centuries-old legal doctrine of legislative immunity.
The point of exempting Congress is that it limits the ability of the executive branch to use its great power to punish political enemies for carrying out their official duties.
Perhaps Obama is unaware of what it has done in his name, but his administration has broken his promise of transparency. This is why Congress had to act. We congratulate leaders of both parties for finally forcing the hand of a power-hungry executive who has been as opaque as any in modern times. Obama claims repeatedly that his is “the most transparent administration in history.” Cue the hollow laughs.
