Obama revives the Freedom of Information Act.

Military analysis.
Jan. 23 2009 12:06 PM

A Presumption of Disclosure

Obama revives the Freedom of Information Act.

US President Barack Obama puts his pen away after signing an executive order. Click image to expand.
Barack Obama signs an order to close the prison at Guantanamo Bay

It has received the least attention of his first-day decisions, but President Barack Obama's memorandum on reviving the Freedom of Information Act stands as the clearest signal yet that his campaign talk about "a new era of open government" wasn't just rhetoric; it's for real.

The key phrase comes right at the top: "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails."

Later in the memo: "All agencies should adopt a presumption of disclosure. … The presumption of disclosure should be applied to all decisions involving FOIA."

Furthermore, "In responding to requests under the FOIA, executive branch agencies should act properly and in a spirit of cooperation, recognizing that such agencies are servants of the public." In fact, "All agencies should take affirmative steps to make information public. They should not wait for specific requests from the public."

This could not be clearer. The new president was calling for a complete reversal of the Bush administration's directives on this matter—and a restoration of the Freedom of Information Act's original purpose.

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The Bush era's tone was set in October 2001, when then-Attorney General John Ashcroft issued a memo to all federal agencies, assuring them that if they were sued for refusing to release documents under the FOIA, the Justice Department would defend them in court as long as their decision had a "sound legal basis." This reversed a guideline, signed by President Bill Clinton in 1993, noting that the Justice Department would defend agencies' refusals only if releasing the documents would cause "foreseeable harm."

Ashcroft's guidance was reinforced in March 2002, when Bush's chief of staff, Andrew Card, issued a memo urging agencies to protect information that was "sensitive," even if it was unclassified.

Both memos were written in the aftermath of Sept. 11; the impulse behind them was, up to a point, understandable. However, the bureaucrats who control the documents—cautious by nature and sensitive to signals from on high—took the memos as cues to tighten the lid not just on legitimate national-security secrets (which the FOIA had always exempted from routine disclosure) but on everything.

The consequences were dramatic. From 1995 to 2001, federal agencies declassified 1.15 billion pages of documents under the Freedom of Information Act—an average of 190 million per year. From 2002 to 2006, after Ashcroft issued his memo, agencies declassified 182 million pages in total—an average of just 36 million per year, less than one-fifth the volume.

Even these statistics understate the stranglehold because, in many cases, even after the documents were declassified, the relevant agencies—the Pentagon, the CIA, the SEC, or whatever—refused to release them.

Part of the problem was, and still is, sheer overload. Hundreds of millions of classified documents, many dating back a quarter-century or more, are stacked up in the archives, awaiting review. Countless FOIA requests submitted by individuals or public-interest groups have gone unanswered for years—in some cases for more than a decade. The original law, passed in 1967 and strengthened in 1974 and again in 2002, required at least an acknowledgment of the request within 10 days. (It is worth noting that President Gerald Ford vetoed the '74 expansion, on the advice of Donald Rumsfeld, his chief of staff; Rumsfeld's assistant, Richard Cheney; and the Justice Department's chief counsel, Antonin Scalia. Congress overrode the veto.)

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