Thoughts on FOIA Executive Order

Now that I've had some time to digest President Obama's Executive Order on the FOIA, I have some thoughts on it.

The biggest implication, I believe, is the signal it sends.  This Executive Order states that there is a presumption of disclosure of government records and it was sent on the first day of the new administration.  It tells the Attorney General to issue guidelines consistent with the Executive Order.  I believe it is an instruction to the Department of Justice and all agencies that past practices need to be revisited and the withholding for the sake of withholding days are past.

I think the Reno memorandum of October 1993 will be the place the Department of Justice will start in making the FOIA more open.  However, I hope that Justice doesn't stop there and listens to open government groups that have circulated ideas about improving the FOIA. 

My advice to the Department of Justice is to be bold and rethink underlying assumptions about why certain records should not be released pursuant to the FOIA.  As an example, does the release of pre-decisional documents always chill the decisional process of the government?  I don't think it is always true and the use of exemption 5 on every pre-decisional document should be rethought.

On the whole, I think yesterday was a great day for the FOIA, but there is much work to do in the months ahead. 

Comments

[FOIA Friend]

Absolutely correct - decisions are based on their merits and rejections should also be based on their merits. Once a decision is made, the recommendations that were not successful should also be shown to the public to show the rationale for the rejection - and also show that the government is working on their behalf. Far too long has OGC operated on a "discovery" limitation; but they should not be applying such a standard for sharing information with stakeholders when it conflicts with the FOIA's spirit and intent and Presidential orders. The professionalism of OGC needs to be maintained as if Ex5 would not be applied - that should cut out some of the BS, delay, and obfuscation of the past. I hope DOJ comes up with categories of "FOIA ready" documents that shall be posted to the web instead of should be posted to the web (within 30 days). Every contract - post it. Every final report - post it. Every completed investigation - post it. Every performance contract - post it (not the review, just the performance standards). Every agency should identify the "top 10" types of requests they get and automatically post that type of document without waiting for a FOIA request. With limited resources for FOIA processing and programs - then eliminating the number of requests received should be just as much a goal as eliminating a backlog.

[James F. Grant]

I think you should read the FAS commentary on what Obama has done. His order only applies to "discretionary" material which is a very small portion of gov't records. Most material that is classified is rendered so by statute, not agency whim. As the FAS blog says:
" Inevitably, several caveats are in order. A “presumption of disclosure” really only applies to records that are potentially subject to discretionary release, which is a finite subset of secret government information. Vast realms of information are sequestered behind classification barriers or statutory protections that remain unaffected by the new policy statements. “In the face of doubt, openness prevails,” the President said. But throughout the government secrecy system, there is not a lot of doubt or soul-searching about the application of secrecy."
See: http://www.fas.org/blog/secrecy/

[scott hodes]

Mr. Grant raises some interesting points; however classification is not by statute but by Executive Order. It will be interesting to see what President does when he issues an Executive Order on classification. President Bush merely amended the Executive Order issued by President Clinton.

[John Shaff]

If Mr. Grant is trying to imply that most material is pre-ordained to a certain classification and therefore has its redaction fate sealed, he skips right over the point. The whopping total of six or so classifications the government uses on documents are so broad that a bathroom log could be classified on national security grounds. Therefore most documents are discretionary in nature, and not the "the very small portion" as Mr. Grant claims.

President Obama knows of this wide margin of discretion and is attempting to inject a new paradigm into the process so that the next time a FOIA officer sits down to look at your FOIA request, the officer will look at every document and ask him/herself "how CAN I release this?" instead of "why can't I release this?".

In the words of the memo "The PRESUMPTION of disclosure should be applied to all decisions involving FOIA... The Government should not keep information confidential merely because... of speculative or abstract fears."

Another key point missed in the commentary is that this memo also strikes right at the heart of FOIA precedent that has historically protected documents concerning government official's so called decision making process. Of course documents proving successful decisions are always released but somehow the ones involving failures are deemed classified.

and again I quote the memo: "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed"

And if even thats not enough for some of you, Obama rounds the bases at the end of the memo: "The presumption of disclosure also means that agencies should take affirmative steps to make information public. THEY SHOULD NOT WAIT FOR SPECIFIC REQUESTS FROM THE PUBLIC."

Wow, seriously? A proactive government that releases information to the public without being forced through years of litigation... What a world that would be.

Good form Mr. President, good form indeed!