As we reach the 2010 mid-term elections, its good to look back and briefly see how the administration has done during the first half of its first term.
I give President Obama a B- for FOIA thus far. The President started off strong. In his first day in office he issues a Presidential Memorandum on the FOIA. This memorandum urged agencies to make release of documents a priority and he order his Attorney General to issue guidance on the FOIA. This was followed up by Attorney General guidance that distanced itself from that issued by Attorney General Ashcroft during the start of the George W. Bush Administration. Shortly thereafter, the government released torture memos that had been withheld in the previous administration.
At that point, the President was acing his FOIA responsibilities. However, he soon changed his mind on releasing torture photos and eventually signed legislation that barred the disclosure of these photos. The administration has also been largely silent on FOIA issues since its first day in office – it has basically punted FOIA issues to career bureaucrats at the Department of Justice. One of the few major issues that a political appointee has made on a FOIA decisions was Solicitor General Kagen’s decision to seek cert on the issue of whether corporations have privacy under the FOIA (the administration believes they do not and would release material in this instance).
Additionally, the President recently signed the financial reform bill that gave the Securities and Exchange Commission (“SEC”) a broad FOIA exemption. While Congress has passed legislation overturning these broad powers for withholding material, the administration shoulders part of the responsibility for letting the legislation to pass in the first place.
Thus, these factors lead me to give the administration a B- at this time. In order to bring up its grade, its appointees could stress FOIA matters, it could introduce legislation funding FOIA offices, and work on fixing other FOIA problems that have persisted for years. Finally, it could shake up poorly performing FOIA offices at those agencies that fail to understand that the FOIA is a DISCLOSURE statute.
Editor’s Note: Via the Sunlight Foundation – [On September 23, 2010] the House passed legislation to close a loophole that may have allowed the SEC to disregard certain FOIA requests. The Senate passed identical legislation on Wednesday; S. 3717 [went to the] President [and was signed on October 6, 2010]. Many organizations, including the Sunlight Foundation, had called for removal of the exemption which was created in the Dodd-Frank financial regulatory bill passed earlier this year.