Mr. Obama Unveils the New Freedom of Information Act (FOIA)

by Pythiian1 | January 22, 2009 at 07:11 pm

896 views | 92 Recommendations | 30 comments

One of the most vocal complaints from journalists has been that FOIA complaints were taking months, even years, to be responded to, and that information was being over-classified as off limits.

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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Sanjay Jha

at 19:24 on January 22nd, 2009

Thanks for your post. I think within hours of taking over President has clearly given signal for his style of functioning with instructions to his staff for being more responsive over the freedom of information.

Pythiian1

at 20:19 on January 22nd, 2009

Thank you so much for reading, your comments about FOIA, and recommendation. Mr. Obama used an executive order, which will require his successor to use an executive order if s/he wants to reverse his FOIA. It's clear that he's looking down the road when he is no longer in office, and yet can still provide journalists, scholars, and researchers a legal vehicle to request for information and records for confirmation or verification.

duo

at 21:47 on January 22nd, 2009

Hurray! Open government is key to a free society. Good for President Obama! Thank you for posting this exciting news.

Here is more good news:

See what the ACLU reports our new president did today!

With four executive orders today, our new President:

Ordered Guantánamo Bay shut down
Banned torture
Ordered a full review of U.S. detention policies and procedures, and
Delayed the trial of Ali al-Marri, an ACLU client whose case is at the center of the Supreme Court’s review of indefinite detention policies.

This is a fine start, President Obama. All the best to you and your administration.

Blessings,

Mary Neal
http://wrongfuldeathoflarryneal.com

Miriam Mannak

at 22:09 on January 22nd, 2009

Being a journalist myself, the only thing I can say is "Bravo Mr OBama, Bravo!!!"

Pythiian1

at 17:38 on January 23rd, 2009

You're not alone in celebrating this new FOIA under executive directive/order, which will remain in place in the foreseeable future under the Obama administration and beyond... Thanks for your comment and recommendation.

Pythiian1

at 20:21 on January 23rd, 2009

Thanks so much Amy for reading, commenting, and your recommendation.

I'm reasonably certain that his legal team has also seen the reams of FOIA requests on file from previous administrations, not to mention, the publicized ones. He has certainly taken an important step by "arming" his FOIA by issuing an executive order/directive.

Karen Hatter

at 13:57 on January 24th, 2009

From Whitehouse.gov:

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike. 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 (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public. All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA. The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely. It would seem pre-election, pre-executive order complaints are non-relative to how the process of obtaining information will proceed, which will not be known until the memoranda and structures meant to accompany the changes are in full effect.

Andrew Yu-Jen Wang (not verified)

at 19:25 on January 22nd, 2009

US rapper, Kanye West (African-American rapper, record producer, and singer), had said former President Bush is racist.

But I disagree with Bush.

Black people are cool!!

Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993

158

at 19:39 on January 22nd, 2009

I agree with him on this one but he does need to study these decisions at least a few days.

mtammas

at 20:19 on January 22nd, 2009

I am unfamiliar with American FOI provisions but am impressed with what I've just read about Obama's memos. I use Freedom of Information requests to access information in British Canada and have been having great difficulty gaining unredacted documents in a timely fashion. Could we please import Obama's "...in the face of doubt, openness prevails." What a concept! May the public interest reign.

Pythiian1

at 20:26 on January 22nd, 2009

Thank you 158 for your reading, comment, and recommendation.

With due respect, since the Bush FOIA had been around for 8 years therefore, I think the Obama's legal team like most lawyers and scholars will have had more than ample time to have reviewed the restrictions that were imposed by Mr. Ashcroft.

Pythiian1

at 20:36 on January 22nd, 2009

Hi Mtammas, thanks for your reading, comment, and recommendation.

I don't know anything about your country's FOIA, but the American FOIA request has to be fairly specific as to the nature of each inquiry. The new executive order will facilitate the application process, which hopefully, the bureaucracy will cooperate.

mtammas

at 20:43 on January 22nd, 2009

Depends on what one is looking for. Requests may range from quite broad to very specific. Most FOI officers are good on advising how to narrow a request.

nyctuber

at 22:46 on January 22nd, 2009

Totally amazing.

Paschen

at 23:13 on January 22nd, 2009

Good news. I just wish he would have made a speech like Trinidad's former President Peterson.

Dave Keating

at 23:55 on January 22nd, 2009

This is great news for journalists, and the public

djermano

at 02:39 on January 23rd, 2009

And how about information toward a new 911 investigation?

How about the torture given to K.S. Mohammad making him confess to doing 911 just to have the torture stop?

http://www.rense.com/general75/kkl.htm...

Rev.

Pythiian1

at 16:50 on January 23rd, 2009

Thanks so much Mary for reading, your comments, and recommendation.

Pythiian1

at 17:11 on January 23rd, 2009

Thanks nyctuber for your comment. You'd be more amazed when you read the wording of the new FOIA, which can be accessed from one of the hyperlinks in my piece.

Pythiian1

at 17:32 on January 23rd, 2009

Thank you Dave Keating for your comment and recommendation. It's great news for journalism students, faculty, scholars and researchers alike. In addition to Columbia and New York University, other universities in my city are buzzing with delight once the news of the Obama FOIA sets in.

Pythiian1

at 17:35 on January 23rd, 2009

Thanks Paschen for your comment and recommendation. The crucial news is the new Obama FOIA is an executive directive/order, unlike the two previous administrations' memos from the U.S. Department of Justice.

Pythiian1

at 17:40 on January 23rd, 2009

Thanks for your recommendation, djermano.

Amy Judd

at 19:03 on January 23rd, 2009

Lovely - I am glad he did do this; it's important to have access to all the information and Obama at least knows that it's better for journalists to have facts that to be tempted to make them up themselves...

politisite

at 23:27 on January 23rd, 2009

This is a great article. I think that this is Obama window dressing. Two days after Obama took office most of my press release acquisition processes were, 'Expired'. The press (some of my friends) are already complaining about access and new stricter policies put into place. Obama has just put constraints on photographers of, "approved only" measure. The AP is even worried Obama Rules Media With Iron Fist. So I am sure that documents in the FOIA will come as quick as he wants. He is not being transparent with the press like he is leading the public to believe. One will see on the weeks to come as the press gets tired of the constraints and lashes out. There are already articles out there on Obamas new policies.

While on the campaign trail, I got a taste of how he would handle the press. He put us as far away from him as possible. He did not take random questions and was the hardest candidate I ever tried to interview. Out of all the candidates, he was the Only one I couldn't ask a question.

djermano

at 04:01 on January 24th, 2009

That's right Polsite....he doesn't want to face the reality about 911 and its affect on the fallen markets. He is afraid, and I don't blame him....but people are not going to let the Bush Ad. off the hook, and Obama either supports or gets out of the way. For the truth.

Rev.

Pythiian1

at 10:39 on January 24th, 2009

Thanks for reading, commenting and your recommendation, Politisite.

I understand your perspectives and am mindful of the Reuters, AP, and AFP photographers' complaints and predicament when the White House selected its own photographer to capture the first day of President Obama's activities.

With due respect, my piece is about the Freedom of Information Act's revision and changes from previous administrations in handling inquiries about, and requests for documents and records. I'm reasonably certain that many are now testing the new FOIA by making their requests to the FOIA Office.