FOIA Foibles: Obama’s Failed Promise of Transparency
When Barack Obama won the presidency in 2008, he largely rode in on a tide of lofty promises. An important component of the trademark “hope and change” of the Obama brand was to be a return to public accountability. The White House website features a memorandum from Obama himself calling for transparency and an open government, which begins, “My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.” That sounds appealing enough, but doesn’t change the fact that the president and all members of Congress are exempt from providing information to the public via the Freedom of Information Act.
The Freedom of Information Act (FOIA) was signed into law in 1966 by former President Lyndon B. Johnson, though he was not enthusiastic. Genelle Belmas and Wayne Overbeck describe his discomfort in Major Principles of Media Law:
Johnson was no fan of the FOIA; he did not hold a signing ceremony and edited the signing speech written by his aide, Bill Moyers, to be more cautious. . . . Moyers later said that LBJ ‘hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.
Meant to encourage more government transparency in the executive branch, the act requires government agencies to disclose information to the public, though there are nine exemptions ranging from information regarding personnel and medical files to geological information concerning oil wells.
It is actually a rather simple and painless process to fill out a FOIA form. There are differences at the federal, state, county and municipal levels, but most people can submit FOIAs online via email or websites forms. Usually all that is required is your name, address, email address and phone number, what information you are requesting, and how much you are willing to spend to obtain it. A popular form to use when filling out FOIAs can be found on the Student Press Law Center, a group that offers legal assistance to high school and college journalism program.
Time limits vary, but for the federal FOIA, an agency must respond to you within 20 business days, granting or rejecting your request, or it can be sued. One can request expedited requests, but these may not be granted. Prices vary, but requesting information online can help cut down on costs associated with printing. Those requesting information can also ask to have their fee waived, and sometimes agencies will comply, particularly if they believe it would be in their best interest to disseminate the information.
Since its creation, journalists, organizations and private citizens have used the FOIA to uncover government corruption and hold the government to greater accountability, but elected officials like congressional members and the president are not forced to disclose information. Use of the federal FOIA has revealed that the government has spied on people like Martin Luther King Jr. and John Lennon; that the Ford Pinto model had serious problems; and that Agent Orange was being used in the Vietnam War, according to Belmas and Overbeck.
* * *
The Obama administration recently released the Open Government Status Report , which praises itself for embracing FOIA and promoting government transparency. According to the report, during the last fiscal year, from October 2009 through September 2010—the first full year of Obama’s presidency—the Administration made full, or unredacted, disclosures with 56 percent of their processed FOIA requests. Combined with partial, or redacted, disclosures, the agencies disclosed 93 to 94 percent of all processed FOIA requests. Furthermore, they found that invocations of FOIA exemptions fell by 10 percent, or about 54,000, during that fiscal year.
The Obama Administration has also worked to increase transparency by pushing out information before it is requested, and in the report points to the creation of FOIA.gov, a website that covers a variety of topics regarding the act, as evidence to their devotion to the legislation.
However, in 2009 Obama signed Executive Order 13526, which allowed for previously unclassified information to become classified if deemed a national security risk. The order also began a process to start declassifying previously classified materials. Yet despite increasing disclosed FOIAs, Obama himself and congressional members are still exempted from the FOIA, though the White House is not exempt. Members of the various state legislatures are also not exempt from FOIA requests.
Congress is exempt largely because it created the law, said Kevin Goldberg, Special Counsel at Fletcher, Heald & Hildreth, PLC. and a media law professor at George Mason University: “Congress did not want themselves scrutinized. . . . since they were writing the law they could write it as they wanted it to be written.” The argument against requiring Congress to be FOIAed, said Goldberg, was that if people felt their congressional members were being secretive there was an easy way to fix the problem: kicking them to the curb and electing someone else.
However, particularly for the time, the introduction of the FOIA was a major “step forward” said, Goldberg, and despite its flaws it has assisted many people in obtaining previously unknown government information. “It’s a wonderful law in practice. . . [that] doesn’t work as well in theory, but I think we would be completely lost without [it].” Recently in the news, government secrecy has been playing out for all to see, and public frustration with Congress is inexorably rising. Take Operation Fast and Furious, where the federal government secretly sold weapons to powerful drug cartels in Mexico. U.S. Attorney General Eric Holder has subsequently faced major criticism, with many members of Congress calling for his ouster.
And while governmental secrecy has always been an issue, Americans turned a critical eye to the George W. Bush administration after 9/11. In the wake of the attacks, the government tightened its grip on its citizens, the executive branch increased its power, and civil liberties took a turn for the worse with the Patriot Act, which allowed the government to wiretap citizens without a warrant in the name of national security. It is measures like this that have caused heightened anxiety about government power, and an increasing push for governmental transparency and accountability.
* * *
As for congressional secrecy, if members of Congress were acting in the best interest of their constituents, there would be no reason not to be open, said Ken Bunting, executive director of the National Freedom of Information Coalition. “The truth of the matter is that they [Congress] could be open, they should be open. Yes, people can [unelect] people that they don’t like, but can they really follow each person one by one who hid something from them?” People can use the FOIA to take a peek at expenditures by members of Congress. While working in Pennsylvania, and using the state FOIA, I was able to request the expenditures of every member of the state House of Representatives and Senate, and it was quite telling. Thousands of dollars were spent on mailing items, and many legislatures treated constituents to meals frequently. Salary information is also often requested through the FOIA. Citing another example from Pennsylvania, I was able to look at county employee salary information as well.
The unfortunate downside to the FOIA program is its cost to taxpayers. According to the Department of Justice website, the U.S. government has put a tremendous amount of money into complying with FOIA regulations. In fiscal year 2010 the government spent over $400 million administering FOIA requests, and employed almost 4,000 full-time staff to process FOIA requests. These numbers are astronomical, but when trimming budgets, FOIA funding should be spared. The millions spent and thousands employed are a testimony to the valiant efforts of some to have our government be more accountable. Indeed, the numbers speak to the strong public interest in the program, with a large push to answer the thousands of requests the federal government receives each year.
But despite millions of dollars being funneled into answering FOIA requests, the public does not yet have the privilege of FOIAing their congress or president. If this were to be remedied, Americans would have a greater, more complete understanding of government, and those in power would be more honest. “The best government is government in the sunshine,” said Bunting.”
Some, however, have argued that the FOIA, despite its good intentions, actually can infringe on the rights of citizens. Earlier this year Virginia State Sen. Stephen Martin’s (R-Chesterfield) bill to bar the release of some public employee’s names and salary information via the FOIA was defeated, reported Virginia Statehouse News. Had the bill passed, the FOIA would have been severely undermined as salary information of taxpayer funded employees is one of the most common and useful pieces of information the FOIA can deliver. Other critics cite the recent WikiLeaks scandal, where secret government cables were published that portrayed the United States in a negative light; they are leery of releasing information lest it damage national security.
Still, the FOIA is one of the most important pieces of legislation that has ever been introduced into the country. The FOIA serves as a check on government that everyone is allowed to utilize, but more ought to be done. A FOIA that applies to members of Congress is imperative to check our elected officials. The fact is, even if we can unelect these members for secretiveness, more often than not we do not know there are secrets—whether that be government handouts to nefarious organizations, excess spending on futile items or full-fledged government conspiracies. In an era of increasingly vigorous citizen journalism, a more robust FOIA program would be a great boon.