Justice Department officials helped kill a Freedom of Information Act reform bill that would have written President Obama’s transparency pledge into law, newly-released documents show.
“The administration strongly opposes [the FOIA bill],” says a DOJ memo written in 2014 and obtained by the Freedom of the Press Foundation. “The administration strongly opposes the bill’s addition of a narrow ‘foreseeable harm’ standard into the FOIA exemptions.”
The memo refers alternatively to that standard as the “presumption of openness,” a phrase President Obama used in one of the first executive memoranda he issued upon entering the White House. That memo contradicts some of the most touted aspects of Obama’s pledge to lead the “most transparent administration in history” as president, and bolsters media complaints that have been lodged against the White House in recent years.
Although DOJ recognized a similarlity between Obama’s stated policy and the legislative text, officials concluded that such a policy would be “particularly pernicious” if passed into law. “It would create massive uncertainty and would chill intragovernmental communication,” the memo says.
Obama promised to overhaul the FOIA process one day after taking office as president. “The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed,” he said. “But the mere fact that you have the legal power to keep something secret does not mean you should always use it. The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.”
In the 2014 DOJ memo, though, the Obama administration “strongly object[ed]” to another provision that might have seemed to carry out the spirit of his comments. “[T]he bill would add [a new provision of law] which would require all agencies to affirmatively review all their records to determine which would be of public interest, and then to affirmatively process all such records, and make them available in an electronic, publicly accessible format,” the memo says. “[T]he breadth of this provision is staggering, since virtually every agency would have millions of records to review.”
In the face of such opposition as well as a time-crunch to pass government funding legislation, then-House Speaker John Boehner let the Senate-passed version of the bill die at the end of 2014.
