2016-06-15_14-40-54


Background


The
following documents were obtained through a FOIA lawsuit by the Freedom of the
Press Foundation.  Below the documents, you will also find a copy of the
original, and well documented, press release article, as published by the
Freedom of the Press Foundation on March 18, 2016.


Documents Released


 Justice
Department’s opposition to FOIA reform
[144 Pages, 12MB]


Additional Information


This work
below is licensed under a Creative Commons Attribution 4.0 International
License by the Freedom of the Press Foundation.


New documents show the Obama admin aggressively lobbied to
kill transparency reform in Congress


March 8,
2016


By Trevor
Timm


New
documents obtained through Freedom of the Press Foundation’s lawsuit
against the Justice Department
reveal that the Obama administration – the
self described “most transparent administration ever” – aggressively lobbied
behind the scenes in 2014 to kill modest Freedom of Information Act reform that
had virtually unanimous support in Congress.


Three months
ago, we sued the Justice Department (DOJ) under the Freedom of Information Act
(FOIA) for communications between the DOJ and Congress, since there were vague
reports that the DOJ may have opposed the bill – despite much of it being based
word-for-word
based on the Justice Department’s own policies
.


Today, we
are publishing a detailed memo authored by the Justice Department that strongly
objected to almost every aspect of FOIA reform put forth by the House of
Representatives at the time.


The bill in
question – known as the FOIA Act – was unanimously passed by the House in early
2014. The Senate passed a similar bill – known as the FOIA Improvement Act – in
December of 2014, but a final vote in the House to merge the two bills was held
up at the last minute
by then-Speaker of the House John Boehner and the
session of Congress ended before it could become law. It was unclear at the
time why the bill did not come up for a final vote, but the Washington
Post later reported
that a few federal agencies—including the Justice
Department—had “warned” lawmakers about some provisions in the bill.


But these
new documents show it went well beyond that: the Justice Department vehemently
objected to both House and Senate members on nearly all aspects of the bill
from the very start, and made clear: “The Administration strongly opposes
passage of [the FOIA Act].”Notably, the Justice Department indicates that this
policy memo (published in full below) is not just the agency’s individual
opinion, but that it is speaking for the entire Obama administration.


foia_doj_kwilson


The Obama
administration’s specious objections to FOIA reform were manifold. They were
against codifying the Obama administration’s “presumption of openness” policy
that Obama declared upon his first month in office, they were against Congress
mandating that the federal government create a unified online portal to process
FOIA requests, they were against mandating discipline for FOIA redactors who
break any of rules or regulations for processing FOIA requests, and they were
against providing more reporting and oversight to Congress to make sure FOIA
was being complied with.


The
administration tried to couch some of its opposition in concern that the bill
would “cause delays” in the FOIA process, despite the fact that many of the
provisions were written to speed up the process, modernize the system with an
online portal, and encourage proactive disclosure by making more information
available to the public without even having to file a request. Concerning other
provisions, the DOJ claimed the administration is not opposed in principle, but
its is against seeing them codified into law — which allows the Executive
Branch to delay implementation indefinitely and gives the next administration
carte blanche power to rescind any good policies the Obama administration did
put in place.


Most
importantly, the administration was vehemently opposed to the “foreseeable
harm” provision, also known as the “presumption of openness” standard. During
President Obama’s first few weeks  in office, Attorney General Holder made
clear
that the Justice Department would defend an agency’s decision to
withhold information from the public “only if (1) the agency reasonably
foresees that disclosure would harm an interest protected by one of the
statutory exemptions [in the FOIA], or (2) disclosure is prohibited by law.”
The FOIA Act would have simply made this policy the law:


An agency
may not withhold information under this subsection unless such agency
reasonably foresees that disclosure would cause specific identifiable harm to
an interest protected by an exemption [in the FOIA], or if disclosure is
prohibited by law.


Doesn’t
sound controversial at all, right? While, the DOJ noted it was “seemingly
analogous to the Attorney General’s ‘foreseeable harm’ standard contained in
his 2009 FOIA Guidelines,” it referred to this language as “particularly
pernicious.” They claimed a slight word change from the DOJ’s own policy would
dramatically expand current policy; yet critically, they stated that they would
be against it even if the language was exactly the same as their own stated
policy. From the memo:


To be clear,
we do not believe that this is fixable by amending the language, because any
codification of a foreseeable-harm standard would undermine proper FOIA
administration by requiring judges to determine on a document-by-document,
subjective basis whether withholding is proper.


Imagine
that: giving judges the power to be able to determine whether the government
was lying!


While the
Freedom of Information Act remains a valuable tool (this lawsuit can attest to
that), any reporter who has filed a FOIA request can corroborate the fact that
the law is badly broken. Multiple investigations have shown that the Obama
administration has been the most secretive ever when it comes to FOIA. Requests
can often take years to be fulfilled if at all, and the only way to get results
is to sue, like we were forced to. (We did not receive any documents for over a
year from our first requests, and only received these documents after filing a
lawsuit).


This
summer is the 50th anniversary
of the Freedom of Information Act, and
Congress is yet again debating
a FOIA reform bill
, this time with even more holes in it
than last time. We hope that Congress will amend the proposed reform in the
strongest possible way and send it to the president’s desk with the same
message they did fifty years ago when the Johnson administration opposed it,
yet was forced to sign it anyways: transparency is vital to democracy.




Special thanks to our amazing pro-bono legal
counsel working on this case,Marcia
Hofmann
and D. Victoria Baranetsky,
who did all the hard work to make this lawsuit possible.

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