The biggest FOIA stories of 2009 were actually one story, somewhat akin to a novel with chapters throughout the year. The biggest event in the FOIA had repercussions that echoed throughout the year – and will continue to reverberate in 2010 and long thereafter. That was President Obama’s Presidential Memorandum of January 21, 2009, issued on his first full day in office. In issuing that memorandum, the President made known that transparency and specifically, the Freedom of Information Act, would not be ignored during his administration. He ordered his then unconfirmed Attorney General to come up with guidelines to match the statement.
After being confirmed Attorney General Holder issued his FOIA guidelines on March 19, 2009. In it he largely sidelined the Ashcroft Memorandum of the previous administration and reinstated the foreseeable harm test of the Clinton administration.
The first test of the new government FOIA policy came when it was time to decide what to do with Bush era Department of Justice Office of Legal Council memorandums on torture. The administration released the documents, which caused a great outcry from those who believed this type of information should stay secret. Thus, this release set up the next big story, what to do about the torture photos that had not been made public and that a Court of Appeals had ruled were not releaseable pursuant to the FOIA. After the Court of Appeals ruling, the administration announced they would release the photos.
The torture photos issue became an issue as those who opposed President Obama found it an easy way to state that his administration’s proposed release of the photos showed that they were soft on national security. The administration reversed course and stated they would appeal the ruling to the Supreme Court. Additionally, Congress passed a law making the photos exempt from disclosure and attached it to the military funding appropriation. After the President signed the bill, the photos were found to be exempt pursuant to FOIA exemption 3, and the Supreme Court vacated the original Court of Appeals ruling sending the case back to the Court.
Other FOIA litigation had better results – cases such as the White House Visitor Lists litigation reached settlement (even though another group not part of the settlement brought a new litigation on the issue later in the year).
All in all, the biggest FOIA story of the year was how an administration can be transparent while safeguarding documents that may (that is always a debateable point) cause national security harm. As the new Executive Order on classification is the next major item to be issued, this issue will likely go on in 2010.
Note to Readers: Some of you suggested other stories as the biggest of 2009. I thank you for your suggestions. I had a suggestion that the issues surrounding some documents from the Climate Research Unit of East Anglia were the biggest FOIA story in 2009. While I think it is a big story for various reasons, it doesn’t involve the United States FOIA and as I cover the USA’s FOIA, it didn’t make the cut. Additionally, other stories were suggested, such as journalist Jefferson Morley’s battle against the CIA on the JFK Act related records of George Joannides. Again this was a big story, but I didn’t think it was as big as the new administration’s attempt to change the way FOIA was done in the government. Another reader thought that the Office of Government Services was one of the big stories of 2009—it was, but I think it will be a bigger story in 2010 when the office is fully staffed and we will know exactly what, or if, it has any impact on the FOIA.
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