Mr. Obama Unveils the New Freedom of Information Act (FOIA)
In one of his first executive orders on Wednesday, Jan.21, President Barack Obama has directed his staff to be responsive to Freedom of Information Act (FOIA) requests from journalists and others.
Obama issued two presidential memos -- one on Transparency and Open Government and another specifically on the Freedom of Information Act -- instructing federal government agencies to operate under principles of openness and transparency.
Broadcasters, newspapers and others were quick to heap praise on President Obama for his pledge to be more responsive to Freedom of Information Act requests than his predecessor, who was much criticized on that front.
Obama's "Presidential Memorandum on Transparency and Open Government" was immediately hailed by open government advocates, including the Sunshine in Government Initiative, an umbrella of media groups including the American Society of Newspaper Editors, The Associated Press, Association of Alternative Newsweeklies, National Newspaper Association, Newspaper Association of America, Reporters Committee for Freedom of the Press and the Society of Professional Journalists.
"It's wonderful that Priority One on Day One for this administration is transparency and restoring public trust," said Rick Blum, the coalition's coordinator. “Yesterday’s policy of 'When in doubt, leave it out,' today became, 'When it doubt, let it out.' And this policy will help keep the public informed in our technology-driven, connected society. On open government, the dawn is breaking."
Judging from Mr. Obama’s description, the second transparency-related order seems designed to reverse President Bush’s widely reviled guidelines on how information officers should respond to Freedom of Information Act requests.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
The Clinton and Bush executive branch FOIA implementation instructions were issued by their attorneys general via memos, not by a Presidential executive order or directive. The Reno and Ashcroft memos certainly had great impact, but those memos only outlined the extent to which the Justice Department would exert in court in order to defend other branches' FOIA decisions. It was also easier to challenge any aspect of those memos in court.
According to the Columbia Journalism Review, there are two possible explanations as to why the Obama FOIA instructions are issued as Presidential executive order.
First, Mr. Eric Holder's confirmation as Attorney General is pending, therefore the Department of Justice is operating without an appointed attorney general, which may explain why Mr. Obama has issued an executive order.
Secondly, an executive order or directive is legally and symbolically different than a memo from a cabinet official.
“An executive order is much stronger medicine. It is a directive from the president to government to do the following unless you’re otherwise prohibited by law,” says David Vladeck, a law professor at Georgetown who has litigated many FOIA cases, and who says he has discussed the administration’s FOIA plans with members of the transition.
Rolling back Obama’s new executive directive on FOIA will be harder, if only because it’s a step that would bring far greater attention. “This is something he wants the next president to have to rescind,” says Vladeck. “He takes this very personally, and he wants his name on this, not Eric Holder’s.”
It appears that the Obama administration, with the swoop of a pen, has struck a quick and prominent victory for journalists, scholars, researchers, and the public.
Journalists and others hope this latest openness is one among many to come.
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