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FOIA Facts: FOIA as Golf

By Scott A. Hodes, Published on March 9, 2012

Recent reports of both the Department of Justice and others about the administrations FOIA overall program have led me to imagine FOIA as golf. President Obama is currently on the fairway of the ninth hole. Voters will let him know in November if he gets to play the back nine.

Unlike his predecessor, he birdied the first hole when he issued a FOIA Memorandum as he drove off the first tee. He birdied the second hole when his administration settled a number of FOIA lawsuits by making discretionary disclosures that had previously been defended as withholdable. The second hole was topped off with a fantastic putt as his Attorney General issued a pro-disclosure set of FOIA Guidelines.

The President was able to par his third hole – but his swings forebode future problems. On that hole, he settled a lawsuit about White House Visitor records – but did so without reversing a key legal position, that these records themselves are not records subject to the FOIA.

The next few holes were not pretty to watch. Veteran analysts looking on the course could see no difference on these holes from that of his predecessor, who had failed to birdie even once over the eighteen hole course. It didn’t help the President that he relied on the same caddies who carried the last set of holes for his predecessor. And his swing coach seemed reluctant to interfere, proclaiming to the President’s advisors that everything seemed fine to him. It should be noted that the now departed swing coach, who had no previous golf experience, never once thought to invoke a post-Cuban Missile Crisis management style in his running of the government FOIA program. Instead, he seemed to prefer listening to the happy talk of Regis and Kelly discussing the FOIA program.

By the end of the sixth hole, the President was playing bogey golf. He refused to make pragmatic changes to his game, such as allowing the White House Administrative Office to again be subject to the FOIA, as it was up until his predecessor’s administration.

The seventh and eighth holes saw the President grinding out a par and a bogey. His caddies showed him statistics that appeared that he was doing just fine. However, in the galley, observers saw things that would suggest otherwise. A lucky shot saved par on seven and eight found him barely making bogey.

So, as the President walks down the ninth fairway, he must look at his caddies and wonder how to prod them into a more offensive disclosure game plan. He looks west at his new swing coach and wonders if he’s up to the task of teaching an open swing. He searches the gallery and sees his advisors and asks himself if they aren’t too busy playing with high-tech instruments and ignoring the basic and simple up and down strategy of a request and pro-release game.

Editor's Note: FOIA Advocates Skeptical About Obama's Claims of FOIA Progress, March 9, 2012 - "After taking heat from good government groups for its lack of progress on transparency, the Obama administration distorted its record on processing Freedom of Information Act requests, a former Justice Department official says. Despite talk early on in his administration that he would make FOIA requests easier to file and government agencies more responsive, proponents of open government have said that Obama has done the opposite. So, it was particularly rankling to see a press release boasting, "Department of Justice Increases FOIA Releases and Reduces FOIA Backlogs." Among those who think the opposite is true, is Dan Metcalfe, a founding director of the Justice Department's Office of Information and Privacy, who guided the federal government's FOIA practices for more than 25 years. He says the government's numbers do not add up...."