3/19/09
In January, President Barack Obama issued two memos pledging that the federal government would comply with the 1966 Freedom of Information Act (FOIA).
The nation’s premiere open records law, FOIA allows the public to request copies of all federal government documents except those specifically exempted under the law.
Obama’s first memo ordered the federal government to assume that documents should be disclosed if at all possible, reversing the former president George Bush administration’s policy of identifying legal arguments to justify withholding documents from public disclosure.
“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama wrote.
The second Obama memo was more ambiguous, ordering the White House Office of Management and Budget to identify ways to make the government more transparent.
But together, the memos suggested a shift toward more government transparency.
“It sets a tone for robust compliance with the duties set out in FOIA,” New Mexico Foundation for Open Government President Charles Purcell said. “That can accomplish a great deal with making government transparent and accountable.”
Obama’s memo to government directors even hinted that disclosing requested documents wasn’t transparent enough — that the government should try to make documents public even before they’re requested.
“The presumption of disclosure also means that agencies should take affirmative steps to make information public,” Obama wrote in his memo to agency heads. “They should not wait for specific requests from the public.”
That was music to the ears of open government proponents.
“I’m pretty damn pleased that the issue of transparency in government is such a high priority,” Sunlight Foundation Director Ellen Miller said.
But Washington D.C. FOIA attorney Scott Hodes said it was too early to know whether the memos represent substantial change.
“We’ve started to see more records being released, the first trickle,” Hodes said. “But there’s no Justice Department guidance yet so most agencies are in a holding pattern.”
The real test will come with the new administration’s release of new FOIA guidelines later this month, Hodes said. Those guidelines will lay out exactly how the government will respond to FOIA requests.
“The wording will determine how much agencies can continue with business as usual,” Hodes said. “It could be just window dressing.”
Both federal and state open records laws has evolved over time, Purcell and Hodes agreed.
“The (New Mexico) Inspection of Public Records Act was originally passed in 1947,” Purcell said. “It was understood by the courts to give public bodies considerable discretion to determine when public policy concerns outweigh the need to disclose documents.”
But in 1993, the state legislature declared, “Every person has a right to inspect public records of this state.”
In 1993 and 2005, the legislature spelled out specific, narrow exemptions to the Act, such as some veterans’ discharge papers and documents that may endanger a person’s life.
“They made clear that state policy is to release all other documents,” Purcell said.
The Watergate scandal encouraged Congress to strengthen FOIA, Hodes said.
“FOIA was originally passed in 1966,” Hodes said. “But it really got its teeth after Watergate, when Congress amended the law in 1974 and 1976, identifying specific exemptions.”