Senators Leahy and Cornyn previously teamed up to enact the Open FOIA Act, designed to end the use of overly broad interpretations of the act's exemptions to deny requests.
Read more about this display of bipartisan cooperation here.
The past eighteen months have been an exceptionally promising time for the Freedom of Information Act and for those who look to it to shine a bright light on the world. First Congress amended the Act with a package of amendments designed entirely to aid FOIA requesters, improve agency FOIA performance, and foster greater disclosure. Then a president who has declared that he wants to run “the most open administration in history” was elected to replace a president whose administration seemingly “never met a secret it didn’t like.” See, e.g., The Nature of Government Secrecy, 26 Gov’t Info. Quarterly 305, 307 (2009).More here.
But as often is said of expected improvements in such areas of administrative law, “the devil’s in the details.” And when it comes to the FOIA, those devilish details are most often found in the quality of the implementation of new provisions and policies, on a governmentwide basis, and the timeliness, comprehensiveness, and effectiveness with which that is achieved. That is where the brightness of promised sunshine can readily fade if a new presidential administration is not pragmatic and careful. In this case, the badly incomplete implementation of the FOIA amendments made by Congress in 2007 foreshadowed no less.
The ACLU’s effort to get photos documenting the treatment of detainees in Iraq and Afghanistan was halted by the Senate on Thursday night, in an amendment to the appropriations bill.The Senate also agreed to require new laws that exempt information from disclosure under the Freedom of Information Act to specifically reference the FOIA, making them easier for requesters to spot.
The two changes were part of the supplemental appropriations bill, which the House already passed. The House and Senate will now reconcile the two versions of the bill.
More here.
Charles N. Davis [Executive Director, National Freedom of Information Coalition]: "The May 19 federal appellate court decision finding that the White House's Office of Administration is not subject to the Freedom of Information Act is an act of legal finery in bad need of a legislative fix.More here.
Indeed, the court's decision is but the latest example of how crabbed judicial interpretation of the Act has restricted its ambit even as the digital communications of the era bedevil a law created in the days of manila folders and Smith-Corona typewriters.
In upholding a ruling last year by a federal judge, the appeals court found that the White House does not have to make public internal documents examining the potential disappearance of emails during the Bush administration.
In a lawsuit brought by Citizens for Responsibility and Ethics in Washington, the U.S. Court of Appeals for the D.C. Circuit ruled that the White House Office of Administration is not required to respond to FOIA requests, Politico reported. The group was seeking information about "an archiving failure which allegedly resulted in millions of White House e-mail messages being misfiled or even lost."
The White House's Office of Administration does not have to respond to requests made under the Freedom of Information Act, the U.S. Court of Appeals for the D.C. Circuit ruled in a 3-0 decision this morning.
"Because nothing in the record indicates that [the Office of Administration] performs or is authorized to perform tasks other than operational and administrative support for the President and his staff, we conclude that OA lacks substantial independent authority and is therefore not an agency under FOIA," Judge Thomas Griffith wrote in an opinion joined by Judges David Sentelle and Raymond Randolph.
The setback for transparency advocates came in a lawsuit brought by Citizens for Responsibility and Ethics in Washington seeking information about an archiving failure which allegedly resulted in millions of White House e-mail messages being misfiled or even lost.
More here.
When it comes to accessing records held by federal agencies, the rules have changed.
After eight years of secrecy under the Bush presidency, the new administration promises greater transparency. The first wave of openness came in memos released by President Barack Obama on his second day in office.
The instructions on how federal agencies should apply the Freedom of Information Act came late last week when Attorney General Eric Holder released his FOIA memorandum. It rescinds the one in 2001 that told agencies the administration would support withholding of information.
More here.
The idea behind the Freedom of Information Act is simple: file a request for a document with the government, and they’ll turn it over.
There are, of course, exceptions. The original Act, signed into law on July 4, 1966, listed eight broad exempted categories, including trade secrets, personal medical records, and classified information.
A ninth item ensured it wouldn’t stop there. Section b(3) of the Act says that information can be exempted from disclosure by other statutes. There’s nothing to require that these other exempting statues mention their intent to foil FOIA, and Congress is welcome to write as many of them as they like.
More here.
Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines today that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government." At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency. The memo rescinds the guidelines issued by the previous administration."By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner," said Attorney General Holder. "The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."
The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.
More here.
Download PDF of guidelines here.
President Barack Obama is promising to reinvigorate the Freedom of Information Act by opening more of the government's filing cabinets without a fight. It can't happen soon enough for the people awaiting replies to more than 150,000 requests for information.Behind the headlines, The Associated Press wrestles with bizarre administrative hurdles and jaw-dropping contradictions trying to use the law; some recent ones are described below.
Obama has begun to deliver, but there are conflicting signs about how far he will go.
More here.
More coverage of the Sunshine poll:
Americans overwhelmingly support President Obama's order that federal agencies must show a "presumption in favor of disclosure" when asked to open government records to the public, an order issued during his first full day in office.
But a survey of 946 adult residents of the United States also found that 61 percent believe the federal government "only sometimes, rarely or never" obeys the Freedom of Information Act that requires such disclosure.
Yet the survey, commissioned by the American Society of Newspaper Editors and conducted by Scripps Howard News Service and Ohio University, also found that the erosion of the public's confidence in the openness of the national government has slowed or even reversed slightly after three years of dramatic declines.
More here.
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