New documents obtained through Freedom of the Press Foundation’s lawsuit against the Justice Department reveal that the Obama administration - the self described “most transparent administration ever” - aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.
Three months ago, we sued the Justice Department (DOJ) under the Freedom of Information Act (FOIA) for communications between the DOJ and Congress, since there were vague reports that the DOJ may have opposed the bill - despite much of it being based word-for-word based on the Justice Department’s own policies.
Today, we are publishing a detailed memo authored by the Justice Department that strongly objected to almost every aspect of FOIA reform put forth by the House of Representatives at the time.
The bill in question - known as the FOIA Act - was unanimously passed by the House in early 2014. The Senate passed a similar bill - known as the FOIA Improvement Act - in December of 2014, but a final vote in the House to merge the two bills was held up at the last minute by then-Speaker of the House John Boehner and the session of Congress ended before it could become law. It was unclear at the time why the bill did not come up for a final vote, but the Washington Post later reported that a few federal agencies—including the Justice Department—had “warned” lawmakers about some provisions in the bill.
But these new documents show it went well beyond that: the Justice Department vehemently objected to both House and Senate members on nearly all aspects of the bill from the very start, and made clear: “The Administration strongly opposes passage of [the FOIA Act].”Notably, the Justice Department indicates that this policy memo (published in full below) is not just the agency’s individual opinion, but that it is speaking for the entire Obama administration.
The Obama administration’s specious objections to FOIA reform were manifold. They were against codifying the Obama administration’s “presumption of openness” policy that Obama declared upon his first month in office, they were against Congress mandating that the federal government create a unified online portal to process FOIA requests, they were against mandating discipline for FOIA redactors who break any of rules or regulations for processing FOIA requests, and they were against providing more reporting and oversight to Congress to make sure FOIA was being complied with.
The administration tried to couch some of its opposition in concern that the bill would “cause delays” in the FOIA process, despite the fact that many of the provisions were written to speed up the process, modernize the system with an online portal, and encourage proactive disclosure by making more information available to the public without even having to file a request. Concerning other provisions, the DOJ claimed the administration is not opposed in principle, but its is against seeing them codified into law -- which allows the Executive Branch to delay implementation indefinitely and gives the next administration carte blanche power to rescind any good policies the Obama administration did put in place.
Most importantly, the administration was vehemently opposed to the “foreseeable harm” provision, also known as the “presumption of openness” standard. During President Obama’s first few weeks in office, Attorney General Holder made clear that the Justice Department would defend an agency’s decision to withhold information from the public “only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions [in the FOIA], or (2) disclosure is prohibited by law.” The FOIA Act would have simply made this policy the law:
An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption [in the FOIA], or if disclosure is prohibited by law.
Doesn’t sound controversial at all, right? While, the DOJ noted it was “seemingly analogous to the Attorney General’s ‘foreseeable harm’ standard contained in his 2009 FOIA Guidelines,” it referred to this language as “particularly pernicious.” They claimed a slight word change from the DOJ’s own policy would dramatically expand current policy; yet critically, they stated that they would be against it even if the language was exactly the same as their own stated policy. From the memo:
To be clear, we do not believe that this is fixable by amending the language, because any codification of a foreseeable-harm standard would undermine proper FOIA administration by requiring judges to determine on a document-by-document, subjective basis whether withholding is proper.
Imagine that: giving judges the power to be able to determine whether the government was lying!
While the Freedom of Information Act remains a valuable tool (this lawsuit can attest to that), any reporter who has filed a FOIA request can corroborate the fact that the law is badly broken. Multiple investigations have shown that the Obama administration has been the most secretive ever when it comes to FOIA. Requests can often take years to be fulfilled if at all, and the only way to get results is to sue, like we were forced to. (We did not receive any documents for over a year from our first requests, and only received these documents after filing a lawsuit).
This summer is the 50th anniversary of the Freedom of Information Act, and Congress is yet again debating a FOIA reform bill, this time with even more holes in it than last time. We hope that Congress will amend the proposed reform in the strongest possible way and send it to the president’s desk with the same message they did fifty years ago when the Johnson administration opposed it, yet was forced to sign it anyways: transparency is vital to democracy.
Special thanks to our amazing pro-bono legal counsel working on this case, Marcia Hofmann and D. Victoria Baranetsky, who did all the hard work to make this lawsuit possible.