by Brian Wolfman
On his first full day in office, President Obama issued a memorandum on the Freedom of Information Act (FOIA). He quoted Louis Brandeis's famous line that "sunlight is said to be the best of disinfectants" and directed federal agencies to "adopt a presumption in favor of disclosure." Less than two months later, Attorney General Holder followed suit and "strongly encourage[d] agencies to make discretionary disclosures of information." "An agency," he said, "should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption."
So, has the Obama Administration kept its promise of more openness? We posted in March 2010 that, according to a review conducted by the Associated Press, annual FOIA reports "filed by 17 major agencies found that the use of nearly every one of the law's nine exemptions to withhold information from the public rose in fiscal year 2009." The results of the AP's review were consistent with another report from the National Security Archive showing that about a year into the new administration most federal agencies had not yet implemented the Obama and Holder memoranda.
Attorney General Holder's memorandum stated that the Department of Justice would “defend a denial of a FOIA request 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 memorandum was taken by some openness advocates as evidence that the Department of Justice would defend FOIA litigation less aggressively than had the Bush Administration.
But a March 2012 report by the FOIA Project of the Transactional Records Access Clearinghouse (TRAC) at Syracuse University concluded that
Available evidence indicates that no affirmative steps needed to implement the new [Holder memorandum] defensive standards were ever taken [by the Department of Justice]. Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper.
And, now, a new TRAC report issued on December 20 finds that there's been more FOIA litigation in the Obama Administration than in the prior administration. This may mean that executive agencies have been no more open (and perhaps less open) during the Obama Administration than they had been during the Bush Administration.
But more detail on the types of cases litigated over the relevant periods is needed before accurate conclusions can be drawn. One lawyer quoted in the TRAC report suggests that agency responses to FOIA requests have slowed during the Obama Administration because of funding cuts and, so, more lawsuits are being brought because “more people just got tired of waiting.” (FOIA generally requires that an agency respond to a request within 20 business days, but many agencies are seriously backlogged, and so some suits are filed even before the agency has responded to the request.)