Perhaps with the same reluctance shown by President Lyndon Johnson when he signed the Freedom of Information Act on July 4, 1966, President Barack Obama signed legislation before its 50th anniversary that makes significant reforms to the law that is intended to promote the transparency of public records.
On his first day in office, Obama signed a memorandum, directing all federal agencies to adopt “a presumption in favor of disclosure.”
Instead, the practice of federal agencies has been a presumption of foot-dragging. The Associated Press reported in March that federal agencies during the Obama administration had set a record for failures in finding requested documents. A total of 129,825 times — 1 in 6 requests — agencies came up empty-handed in responding to FOIA requests. In 39 percent of requests to the FBI the agency couldn’t find the desired records; likewise, the U.S. Customs and Border Protection agency said it couldn’t fulfill requests 34 percent of the time.
No doubt, there are occasions when documents no longer exist or never existed in the first place, but not more than 125,000 times.
“It seems like they’re doing the minimal amount of work they need to do,” Jason Leopold, an investigative reporter at Vice News and a leading expert on the records law, told the AP at the time. “I just don’t believe them. I really question the integrity of their search.”
Still, during Obama’s tenure his administration has instituted a number of reforms and program enhancements that were meant to improve access to public records. Many of those now have been codified in legislation that passed both houses of Congress this year and was signed into law on June 30.
Among several improvements, the FOIA Improvement Act of 2016:
Reinforces a standard established by the Attorney General in 2009 that requires release of information unless “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law”;
Encourages administration efforts to create a online FOIA portal for most agencies that will allow those seeking documents to more easily file and track their requests;
Codifies Department of Justice standards that agencies make records and documents available to requesters in an electronic format and post online records that are requested three or more times;
Create a FOIA officers council to develop recommendations to increase compliance and efficiency in fulfilling requests;
Offer ombudsman services to resolve disputes between agencies and those requesting documents;
Allow 90 days for requesters to file appeals; and
Set a limit of 25 years on an exemption that blocks release of documents that are related to the “deliberative process,” such as communications among officials.
Even Leopold, the public records expert, was impressed, telling public radio’s “On the Media,” this weekend that the law “will make it easier for the public, for journalists, for historians to gain access to information.”
There are details to be worked out, including whether to release documents not just to those who request them but to the public in general. The “release to one is a release to all” standard, continuing a Department of Justice pilot program launched last July, would ensure access of requested information to all citizens, not just those making the request.
This is a concern among some investigative journalists, who, as they research a story, are reluctant for the requested information to be made public before they are able to publish their work. But it will be awkward for journalists, particularly those who argue for access, to seek to shield documents from release solely to protect their scoop. Reporters can’t demand that the sun shine only when and where they see fit.
It’s been a long wait for the directive that Obama signed on his first day in office to take stronger hold, but the signing of the FOIA Improvement Act comes in plenty of time to place expectations for transparency and access on whomever succeeds him.
Neither the Democrats’ nor the Republicans’ presumptive nominee have encouraging records when it comes to issues of transparency. Should either Hillary Clinton or Donald Trump wish to demonstrate their commitment to these standards, they should voice their full support now for this law.