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More Transparent Than Thou

Department of Justice building
Department of Justice building
Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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March 15, 2016

At the dawn of his second term, President Obama declared, “This is the most transparent administration in history, and I can document how that is the case.” But three years later, there is an ever-growing cache of evidence with which we can document how it’s not.

The latest addition to that cache is a memorandum unearthed last week through (ironically enough) the Freedom of Information Act, in response to a request by the Freedom of the Press Foundation. The memo, authored in 2014 by the Justice Department, lays out the reasons behind the Obama administration’s opposition to a bipartisan bill that would have reformed FOIA in several important ways. Both the House and Senate passed versions of the bill, but the 113th Congress ended before Speaker John Boehner scheduled a final vote on merging the two, largely due to opposition from the executive branch.

Had it passed, the bill would have accomplished several important changes to the FOIA regime. The most consequential of these would have prohibited government agencies from withholding records sought through FOIA “unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by a[ FOIA] exemption, or if disclosure is prohibited by law.” The provision was an apparent attempt to codify an internal DOJ standard promulgated in 2009 by Attorney General Eric Holder.

The government wasn’t having it, though. The DOJ memorandum called the provision a “major concern,” arguing that the change would be “unacceptably damaging to the proper administration of FOIA and of the government as a whole.”

Those are fighting words, but they are hard to square with the government’s actual arguments. DOJ contended that the crack of daylight between the bill’s standard and the Attorney General’s — the legislation spoke of “specific identifiable harm,” while the Holder guideline spoke simply of “harm” — “would put a vast array of information at risk of disclosure,” and would amend FOIA “in a manner that is fatally vague and subjective.”

Leave aside whether an administration truly committed to transparency would see the potential for additional disclosure as a risk, rather than an opportunity. And leave aside, too, that the executive order governing classification (and that supplies a basis for the withholding of records under FOIA) already requires the government to point to “identif[iable]” and “describ[able]” damage to national security. (If the administration thinks the executive order’s standard is “fatally vague and subjective,” we can celebrate having found some common ground.)

Even if DOJ was right that the legislation went much further than the Holder standard, a more measured response would have been to ask for an amendment to bring the bill into line with DOJ’s supposedly prevailing practice. But the DOJ memo maintained that the bill was not “fixable by amending the language, because any codification of a foreseeable-harm standard would undermine proper FOIA administration by requiring judges to determine on a document-by-document, subjective basis whether withholding was proper.”

Funny, that’s what many of us thought the law required already. FOIA puts the burden on government agencies to justify their withholdings, and while the government can sometimes satisfy that burden categorically, that is supposed to be the exception, not the rule. If the government can’t explain why a document’s release would harm an interest protected by a FOIA exemption — the only interests Congress has ratified as legitimate reasons to keep the public’s information from reaching the public — it shouldn’t be withholding it, period.

Of course, that’s not always how FOIA works in practice, especially when it comes to national-security information. For example, the ACLU’s several ongoing FOIA lawsuits related to the government’s targeted-killing program — which have been covered extensively on Just Security (e.g., here, here, and here) — have been plagued by defendant agencies’ failure to publicly justify their withholdings. While the agencies have filed many classified declarations, they have deemed even basic justifications for withholding to be too secret to say out loud.

Unfortunately, the courts — despite having put in extraordinary and time-consuming efforts to review documents in camera — have done little to check this tendency. For years, at both the district court and appellate levels, the ACLU has had to sit back and watch the government and judges hash many issues out behind closed doors. In fact, in a new appeal just filed in the Second Circuit, the ACLU is challenging a 160-page decision of the district court that is so riddled with redactions that it is impossible to know which arguments and issues the court actually addressed. As we wrote in our brief:

[T]his litigation has been marked by procedural unfairness. The government has effectively excused itself from justifying its withholdings on the public record, and the district court has acquiesced. Indeed, though the district court plainly invested an extraordinary amount of time and energy in reviewing documents ex parte and writing a lengthy opinion, it allowed the government to redact the opinion so heavily that Plaintiffs cannot even tell which issues the court addressed, let alone how it reached its conclusions. To guide the district court on remand, Plaintiffs respectfully urge the Court to reaffirm that the government has an obligation to justify its withholdings as much as possible on the public record; that the government’s failure to meet this obligation means it has “improperly withheld” records within the meaning of FOIA, 5 U.S.C. § 552(a)(4)(B); and that courts have an obligation, when redactions to an opinion are unavoidable, to ensure that the redacted opinion conveys, at a minimum, what issues the court addressed, what conclusions it reached, and why it reached those conclusions.

The government’s positions in FOIA cases like this one help paint a picture of an administration that has failed to live up to its lofty self-congratulations about its unprecedented openness. We already knew that the government, and the Office of Legal Counsel in particular, was playing fast and loose with its transparency obligations (asElizabeth Goitein and I previously discussed on this site). Last week’s revelation of DOJ’s opposition to FOIA reform efforts damage the administration’s credibility on these matters even further.

Most transparent administration in history? Unfortunately, the evidence suggests, most transparently not.

This was originally posted on Just Security.

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