Treading Carefully Towards Transparency

Lee White, May 2009

In looking back at the columns I’ve written so far this year it seems the main story in nearly each issue has had something to do with “openness and transparency” in Washington, D.C. While some readers are no doubt thinking, “Isn’t there anything else going on in Washington?” recently there were additional developments in this regard that merit lead story status being given again to this issue.

On March 19, 2009, Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The memo rescinds the guidelines issued on October 12, 2001, by former Attorney General John Ashcroft.

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 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.

The attorney general also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department of Justice will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rescinded rules, the department would have defended a denial if the agency had a “sound legal basis” for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the attorney general calls on each agency to be fully accountable for its administration of the FOIA.
The attorney general’s memo also emphasizes that FOIA is the responsibility of everyone in each agency, and that in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency chief FOIA officers who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration.

The attorney general also directs FOIA professionals to work cooperatively with FOIA requesters and to anticipate interest in records before requests are made and to make requested records available promptly.

The Office of Information Policy in the Department of Justice will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency.

Progress also continues to be made with regard to the presidential records issue. On April 1, without any debate, the Senate Homeland Security and Governmental Affairs Committee cleared (by voice vote) an amendment in the nature of a substitute for the “Presidential Records Reform Act of 2009,” (H.R. 35). The bill is now ready to go to the Senate floor for consideration.

On January 7, 2009, the House of Representatives approved the original H.R. 35 by an overwhelmingly bipartisan vote of 359-58. While the two versions of the bill are very similar, there are some changes in the bill that will need to be worked out between the House and Senate either in conference or informally before the bill can ultimately be enacted.

The major differences between the House and Senate bills are the length of time the incumbent and former president have to review any records upon notice of intended release by the Archivist of the United States. The House bill had a 20-day review period with the possibility of an extension for an additional 20 days. The Senate bill changes those time frames to 60 days for the initial review with a 30-day extension. So the total review period goes from 40 days in the House to 90 days in the Senate.

The Senate substitute also includes language from the House-passed bill requiring the archivist to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal, or destruction of records of the archives. That specific language was inspired by the well-publicized case of President Bill Clinton’s former National Security Advisor, Samuel R. (Sandy) Berger, who had pleaded guilty to one misdemeanor count of unauthorized removal and retention of classified documents from the National Archives.

Though the Obama administration has made much progress on improving access to government records, Congress continues to press the case with the White House. Edolphus Towns, chair of the House Oversight and Government Reform Committee, sent a letter in February to White House Counsel Gregory Craig seeking an update on how the Obama administration is meeting its obligations to preserve e-mails under the Presidential Records Act and on White House policies on the preservation of e-mail records. The letter cited the problems involving the Bush administration’s apparent failure to preserve thousands of White House e-mails.

The committee requested updated information on how new information technology systems were implemented in the closing months of the Bush administration and their status at the beginning of the Obama administration. The letter also inquired about the policies and procedures put in place to ensure that official e-mails subject to the Presidential Records Act are captured and preserved by the government’s information technology system. The committee also wanted to know what procedures exist for ensuring that all messages sent or received by White House staff on private, nongovernmental e-mail accounts are properly categorized as presidential records or nonpresidential records.

—Lee White is the executive director of the National Coalition for History. He can be reached at lwhite@historycoalition.org. His regular, informative, “Washington Update,” can be read at http://historycoalition.org where readers can also sign up to receive the update or to get an RSS feed about the latest post.