A Tale of Two FOIAs

The FOIA law was passed by our Congress in 1966, on the belief that each us has a right to look inside the government, to see how things are done. Given the nature of politics, it is to be expected that acceptance of this FOIA transparency principle has been variable, depending on who resides in the White House.

When the 9/11 Attacks happened, an emphasis on security caused officials to reduce individual civil liberties. The right of the individual to obtain various federal records via FOIA was cut back. The Attorney General at the time, John Ashcroft, issued a new FOIA policy on 10/12/2001. At it’s heart, Ashcroft’s memo basically told federal managers to err on the side of non-disclosure:

“…when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records….”

The Ashcroft policy stood unchanged through the duration of the ‘W’ administration. Then, the Obama Administration did a complete reversal. On the very day he was inaugurated, President Obama issued a White House Memo. The first three paragraphs stated:

“A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

“All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government….”

Obama’s Inauguration Day memo started the shift. Two months later, Attorney General Eric Holder officially replaced the Ashcroft Memo with a new policy that declared his office would NOT defend Agencies who improperly used FOIA exemptions to conceal releasable documents:

“…pursuant to the President’s directive that I issue new FOIA guidelines, I hereby rescind the Attorney General’s FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records ‘unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records….”

The official FOIA policy shift within FAA was decreed eight months later. Rosalind Knapp, Chief FOIA Officer for the Department of Transportation (DoT), issued a memo on 11/2/2009 which included:

“…Agencies are directed to respond to requests ‘promptly and in a spirit of cooperation’. The President also called on agencies to ‘adopt a presumption in favor of disclosure’ and to apply that presumption ‘to all decisions involving FOIA’. The President’s memorandum directs agencies to take ‘affirmative steps to make information public’, and utilize ‘modern technology to inform citizens about what is known and done by their Government’. The Attorney General, in his March 19, 2009 memorandum on FOIA, established a new standard for defending agency decisions to withhold information. When a FOIA request is denied agencies will now be defended by DOJ ‘only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law’.”

The final step in FAA’s FOIA policy shift has proven to be the most difficult. A President, an Attorney General, and a Deputy General Counsel in charge of FOIA for a very large Department can all clearly articulate a shift in policy, but it still takes years for habits to change on the front line. FAA is doing a much better job on FOIA in late 2012 than they were doing in late 2008, but there is still much room for improvement. [link to Seattle Times article]