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FOIA Facts: FOIA Decision 2004

By Scott A. Hodes, Published on October 17, 2004

There are many one issue voters out there. Be it Iraq, taxes, abortion, or the economy, some people cast their vote for President based on the one issue they hold near and dear to their heart. I take this opportunity to address the one-issue voter who will cast his or her ballot on November 2 based solely on FOIA issues.

Unfortunately, so far in this campaign, both candidates have been silent on FOIA issues. And none of the debates have taken an opportunity to address these issues either. So, I am writing this column based more or less on how I feel FOIA issues would look in a second term of the Bush administration or in the Kerry Administration.

Initially, I note that the President, whoever it may be, has very little direct day to day impact on the FOIA. In 1993, President Clinton issued a statement that was released with the now famous Janet Reno discretionary disclosure policy, but that may have been the last document with a presidential signature on it that mentioned the FOIA.

The real impact an administration has on the FOIA is on two distinct areas. These areas are budget priorities and who the attorney general is.

Budget priorities can be seen in how an agency funds and staffs its FOIA programs. For instance, during the Bush administration, the FDA and the SEC have both developed sizable FOIA backlogs. Requests for information from both of these agencies often require waiting over a year to be processed. It is unlikely that a second term for the Bush administration will increase staffing or funding for either of these, or other agencies, with sizable FOIA backlogs.

From the record of the last Democratic administration, it is much more likely that backlog relief would come in a Kerry administration. During the 1990s, the FBI had a legendary FOIA backlog, at one time comprising over 15,000 requests. The Clinton administration fought for and provided funding to increase the FBI’s FOIA staff, which in turn allowed the FBI to reduce its backlog to a more modest size. [Editor’s note: Scott Hodes was an attorney in the FBI’s FOIPA Section from 1998 until 2002.]

The Attorney General of an administration impacts FOIA policy and litigation directly. The current administration, through John Ashcroft’s October 2001 FOIA memo, allows agencies to withhold anything that is arguably withholdable under a FOIA exemption. An Attorney General in a Kerry administration will very likely reprise the Reno discretionary disclosure policy, which required agencies to withhold information even if it was arguably exempt if its release would cause no foreseeable harm.

Only time will tell the future of the FOIA and how this election will affect it. However, for those of you FOIA voters out there, the choice is yours.