Congress must pass FOIA reform, and the president must endorse it

sw15-vitka-60x80By Sean Vitka
Federal Policy Manager
Sunlight Foundation

While Sunshine Week is about transparency writ large, there’s arguably no single bigger piece of that foundational American value than the Freedom of Information Act. FOIA uncovered details of the torture that occurred at Guantanamo Bay, and led us to J. Edgar Hoover’s FBI file on John Lennon, among many, many other cases about government secrecy. But we need an updated FOIA that fits 21st century information needs.

Passing the FOIA Improvement Act, one of the few truly bipartisan bills during President Barack Obama’s tenure, is the first step to reform. The Obama administration has stated that it hopes transparency will be a defining characteristic of the president’s time in office, but at the same time, it has been working to unravel key tenets of FOIA. For example, why is the CIA still fighting to withhold information about the Bay of Pigs? Why has the administration increased use of discretionary authority to withhold information, while claiming to be the most transparent in history? According to The Associated Press, “five years after Obama directed agencies to less frequently invoke a ‘deliberative process’ exemption to withhold materials describing decision-making behind the scenes, the government did it anyway, a record 81,752 times.” These examples do not illustrate a true commitment to transparency.

It’s time for the president to speak out and publicly support the FOIA Improvement Act. It would empower Americans to better hold government accountable by giving them access to information sooner rather than later, codifying a presumption of openness and closing the loopholes on exemptions. And it’s time for his administration to follow suit.

FOIA, signed into law in 1966 by President Lyndon Johnson, is the kind of policy Americans should be proud of. Over five decades it has evolved to ensure people can hold the government accountable and force it to be transparent. But it’s always been a source of conflict between the public, seeking information, and the government, often working to keep itself away from public oversight. Administrations, including Johnson’s, have always been reluctant to give the people any windows into their insular world. According to Bill Moyers, who was Johnson’s press secretary when FOIA became law, the president, “hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets; hated them challenging the official view of reality. He dug in his heels and even threatened to pocket veto the bill after it reached the White House.”

Despite this, Johnson publicly said he signed it “with a deep sense of pride that the United States is an open society in which the people’s right to know is cherished and guarded.”

Similarly, Watergate underscored the utter inadequacy of the public’s ability to hold the executive branch accountable – after all, government accountability, transparency and the public record should never be dependent on the courage of a whistleblower. But that didn’t stop President Gerald Ford, under guidance from now-Supreme Court Justice Antonin Scalia, future-Vice President Dick Cheney and once-and-future Secretary of Defense Donald Rumsfeld from vetoing reform. Congress overrode Ford’s move and secured for America one of the most critical components of FOIA – the right to judicial review.

In both the current and previous Congress, FOIA’s vanguard is composed of senior membership in both parties, specifically Senators John Cornyn and Patrick Leahy and Representatives Darrell Issa and Elijah Cummings. Both the Senate and the House reintroduced their bills in February, which, in congressional terms, might as well be the speed of light. Their collaboration here isn’t just good for FOIA – it’s a salve for some of the wounds inflicted by the so-called do-nothing 113th Congress.

On the other hand, perhaps it’s unsurprising that certain actors within the Obama administration oppose reform. Indeed, they managed to stall it to death last year over specious claims that it would, for unspecified reasons, (1) make certain administrative law enforcement actions more difficult and/or (2) pose a threat to information given to the government by the financial sector (there are exemptions to FOIA requests that cover both of these already). The same quiet opposition is showing up again now.

Although this is all certainly less dramatic than Johnson’s secret view of FOIA, and less aggressive than Ford’s post-Watergate veto, Obama’s silence is more ironic. There may be no more important political move yet unmade than Obama’s endorsement of strong FOIA reform. So far, the president remains silent, while his agencies fight against it.


 

Sean Vitka is the federal policy manager at the Sunlight Foundation, a nonpartisan nonprofit that advocates for open government globally and uses technology to make government more accountable to all.

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