'Most Transparent' President Signs Into Law FOIA Reform Bill That Won't Affect His Administration

from the 'I'll-take-the-credit-but-not-the-responsibility.' dept

Tue, Jul 5th 2016 10:37am — Tim Cushing

At long last -- after annual assaults on entrenched government secrecy interests -- FOIA reform has finally been signed into law.

Nearly a half-century to the day after President Lyndon B. Johnson reluctantly signed the Freedom of Information Act (FOIA) into law, granting the public the right to access federal government records, President Barack Obama signed into law a historic FOIA reform bill that aims to make it easier for the public to file FOIA requests and obtain government documents.

While this is cause for some celebration, let's not overlook what's actually happened here. Obama has signed a bill he can saddle his successors with. Neither leading candidate seems particularly amenable to openness and transparency -- not Donald Trump with his big ideas on how to change laws to make things better for him rather than for the nation, and not Hillary Clinton, who set up her own email server to route around FOIA requests.

While touting his administration as the Openest Place on Earth, FOIA responsiveness actually took several steps backward during his tenure. His administration also spent several years fighting FOIA reform, something that was ironically uncovered by documents obtained via a FOIA request.

What this one-foot-out-the-door signing does is provide the Obama Administration with a last-minute burnishing of its transparency record -- a brief hat tip to openness as he exits office with a largely-unearned reputation for government accountability.

Moving past the negatives, the new law institutes some interesting new measures, including the somewhat controversial "release to one, release to all" policy. This will provide for the public release -- via agency websites -- of any documents obtained by any FOIA requester. This is good news for the public, which won't have to rely on news agencies for controlled release of FOIAed documents. For news agencies, and the journalists putting in the effort to ask the right questions and push agencies into compliance with requests, this undercuts any level of "exclusivity" they may have used to attract more readers.

"In addition to the feedback OIP [Office of Information Policy] received directly, several journalists wrote about the pilot and voiced their potential concerns with the adoption of this policy," the report said. "The thrust of many of the journalists' concerns, although not always exactly the same, was an unease that posting the records requested by journalists without giving them any lead time with sole access to the records, could take away their 'scoop' or 'exclusive' story. Additionally, there were concerns that routine posting of FOIA- processed records would act as a disincentive for journalists to use the FOIA given that they often invest considerable time and resources into building a story and those efforts would be impacted by loss of the ability to be the first with access to the requested records. At the same time, there were others in the community of journalists who applauded the idea of agencies posting all FOIA responses."

FOIA warrior Jason Leopold is one of many who have commented on this policy, requesting a "lead time" of one week between the requester obtaining the documents and full release to the public. This is not an unreasonable request -- especially when Leopold works for sites like Vice which posts documents it receives when it reports on them. Other news agencies -- far too many to count/name-and-shame -- do not publish the documents they obtain, forcing readers to accept their interpretation of the content.

In terms of the greater public good, the new policy is the better policy, even if it contains the potential to strip away exclusivity. The Freedom of Information Act's purpose is to make the government more transparent and accountable, not act as a lead generator for news agencies. Journalistic agencies are also a huge contributor to holding the government accountable, so it's difficult to flatly state that FOIA enthusiasts like Leopold should just suck it up and deal with the new reality. But it's also impossible to ignore the fact that windowed releases of FOIA docs is just another form of gatekeeping that separates the public from its public servants, even if the separation is only temporary.

Also of note is the law's revamping of Exemption B(5), which is a current government favorite:

The bill radically overhauls one of the FOIA's most abused and overused exemptions: B5, referred to by open government advocates as the "withhold it because you can" exemption. Currently, when government agencies cite B5, which applies to internal deliberations and attorney-client privileged communications, government agencies can withhold records under that exemption forever. Under the FOIA Improvement Act, however, government agencies can withhold records pertaining to internal deliberations for only 25 years. Attorney-client privilege records, which also fall under B5, will not be part of the reform.

And, because the process of filing a FOIA request is often less than straightforward, the law provides for the creation of a single FOIA request portal -- one that will hopefully streamline the process and allow for easier tracking of submitted requests.

Undoubtedly, agencies are already working on ways to comply with the new law without actually being more open and transparent. Certain agencies -- like the Office of the Director of National Intelligence and the DOJ -- will be sure to use the new "release to all" policy to "scoop" journalists who have spent years (and possibly thousands of dollars in fees/litigation expenses) forcing embarrassing documents out of their hands by dumping these into the public's lap prior to news agencies' publication dates. This is a net win for the general public, but it also creates a route for agencies to act out of sheer vindictiveness.

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Filed Under: foia, obama, transparency

26 Comments

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Anonymous Anonymous Coward (profile), 5 Jul 2016 @ 8:46am

Analysis and Compliance
I would rather see better analysis as opposed to first to analyse. If only there were a way to reward the better analyst rather than the first to spew something out.

I wonder, however, just who is going to enforce this new law? The DOJ has been a leader in obfuscating information any way it can, so I don't see them as providing leadership in exposing anything to the public. Just think about getting the DOJ to force the NSA or CIA into removing classification from 26 year old documents. I think it might provide for a re-incarnation of the Three Stooges or Abbot and Costello style comedies, if it weren't so tragic.
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JoeCool (profile), 5 Jul 2016 @ 10:53am

Easy way
So they have to release certain documents after 25 years, huh? Well, I see a document retention plan change in the near future allowing the destruction of certain documents after 24 years. ;)
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Ninja (profile), 5 Jul 2016 @ 10:58am

If the thing is going to be released to the public then the costs should be shouldered by the Govt, not the one asking for the info. It should be charged only if there's abuse and even then after a judicial review. If it's not going to be like that I do believe a period of 'exclusivity' would be the proper way.

As AAC said above I'd rather get a comprehensive analysis of the documents than see who reports on it first. The problem is who gets to shoulder the costs of the thing.
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Anonymous Coward, 5 Jul 2016 @ 10:59am

Tim Cushing? Seriously? President Obama has never been transparent. I fell out of my seat laughing so hard that I can't believe he named this article as 'the most transparent president'. That description is so ridiculous that I can't believe that he thinks Obama is transparent. The only thing transparent about Obama is his ability to turn every media moment into a political statement.
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Ninja (profile), 5 Jul 2016 @ 10:59am

Re: Easy way
And honestly, 25 years is plenty for the ones in power to get away with pretty much anything...
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Anonymous Anonymous Coward (profile), 5 Jul 2016 @ 11:03am

Re:
You must be new here. Tim said that as part of a well instilled and beloved and oft repeated sarcastic twang that Obama is transparent in anything other than his pandering.
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Anonymous Coward, 5 Jul 2016 @ 11:17am

Re:
When exactly did they stop teaching reading comprehension in schools?
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David, 5 Jul 2016 @ 11:25am

Huh.
I think a week of exclusivity for the FOIA requester, or possibly based on time/effort to get the output, seems not all that unreasonable. Of course, as long as time/effort get boiled down to zero, this should not be overly important. I just doubt that in practice that zero will be really there.

Now contrast this with something like Anne Frank's father getting 70 years of exclusivity for censoring his daughter's papers, starting with his death...

Stuff just doesn't add up. And I think one major problem is to route everything through money and tie money into the right to live. Maybe we need different currencies for tangible scarce goods and replicatable ones.
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I.T. Guy, 5 Jul 2016 @ 11:38am

Re:
You sir, need a new sarcasm meter.
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David, 5 Jul 2016 @ 11:58am

Re:
I assumed it was sarcastic as soon as I saw it. Reading the article confirmed that assumption.
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Anonymous Coward, 5 Jul 2016 @ 11:59am

"but it also creates a route for agencies to act out of sheer vindictiveness."

Well that's not new at all... how would we know a government was a government if bureaucrats weren't vindictive little shits to the people they're supposed to serve?
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Mason Wheeler (profile), 5 Jul 2016 @ 12:09pm

In terms of the greater public good, the new policy is the better policy, in large part because it contains the potential to strip away exclusivity.

FTFY. Trading government secrecy for private-party secrecy does nothing useful.
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Anonymous Coward, 5 Jul 2016 @ 12:10pm

Re: Re:
I wonder if Techdirt can sell sarcasm meters for one of its special deals.
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Kal Zekdor (profile), 5 Jul 2016 @ 12:15pm

Re: Huh.
That's not how currency works. You'd just end up with a new currency exchange market for people to change Tangible Item Dollars into Binary Information Tokens. Aside from providing a new market for currency speculators, it would have little effect. See BitCoin.
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limbodog (profile), 5 Jul 2016 @ 12:42pm

reminder
There are people who think it would be a great idea for President Clinton II to appoint President Obama to the SCOTUS.

Stuff like this is why it's a terrible idea.
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Anonymous Coward, 5 Jul 2016 @ 1:09pm

Re: Re: Re:
He would probably think the sale was sarcastic and not purchase it.

When your compass is fucked... well it's fucked.
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Ninja (profile), 5 Jul 2016 @ 1:17pm

Re:
Ahem, read beyond the title and you'll notice it's pure, acidic sarcasm.
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amberb (profile), 5 Jul 2016 @ 1:29pm

Re:
I guess it's hard to display air quotes in print
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Anonymous Coward, 5 Jul 2016 @ 2:20pm

It's a win
If citizens get the information, it's still a win.

FOIA was intended to prevent having to go to court to get the requested information. FOIA just placed an additional step, that of requesting information through FOIA, as one of the steps before getting to court.
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Padpaw (profile), 5 Jul 2016 @ 7:06pm

Nothing will come of it. They will continue to ignore this law like every other one that gets in their way. There will be zero accountability and they know it.
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David, 6 Jul 2016 @ 1:45am

Re: Re: Huh.
There are some mostly inconvertible things: esteem, popularity, pride, legacy. Sure, money is never amiss, and you can pay for PR and ghost writers and private teachers and charities.

But you'll find that exchange rates are nonlinear and you get worse deals than some chap from the street.
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David, 6 Jul 2016 @ 1:54am

Re: reminder
Obama had his chance at showing he respects the constitution. Appointing him to SCOTUS would be like making a serial child molester an honorary kindergardener.

It is rare that someone has the opportunity to demonstrate his total lack of suitability for a job beforehand like that.
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Padpaw (profile), 6 Jul 2016 @ 6:06am

Re: Re: reminder
being given the nobel peace prize then constantly starting wars was a good indicator he was unfit for the job.
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W. Vann Hall (profile), 6 Jul 2016 @ 7:01am

I'm confused...
...where in the amended law is "release to one, release to all" codified? All I see is where the previous statute -- which mandated blanket release for any records an agency determines "have become or are likely to become the subject of subsequent requests for substantially the same records" -- has been amended to include any record requested three or more times. This is based on, admittedly, my skimming of the DOJ's redline of the FOIA, so I may have overlooked something, but the "three request" change is in keeping with my understanding of the bill's provisions.
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Anonymous Coward, 6 Jul 2016 @ 9:17am

Transparency is usually best for the other guy.
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John Fenderson (profile), 6 Jul 2016 @ 12:43pm

Re:
Yep. It's a side-effect of the human tendency people have of thinking of themselves as "the good guys" who deserve special powers.
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