Vox: If The Clinton Email Scandal Has Taught Us Nothing Else, It's That Email Should Be Exempt From FOIA Requests

from the wat dept

You don't often see a journalist argue for more government secrecy. In fact, you never see this. This makes Matt Yglesias' piece for Vox more than an oddity. His argument for a broad FOIA exemption covering the single most-used form of government communications appears to be motivated by two things:

1. His belief that nearly anything critical of Hillary Clinton is overblown.

2. He doesn't like talking on the phone.

When Yglesias seeks a comment from a public official, they often want to call. Why? Because a phone call doesn't create a permanent record of the conversation. This is exactly why journalists would much rather take comments in the form of an email. Or should want to. It's a much better reason than Yglesias', which is that he just doesn't want to be hassled by phone calls. Yglesias feels the real problem here isn't public officials not wanting to go on the record, but the Freedom of Information Act's supposedly inconsistent take on communications.

The issue is that while common sense sees email and phone calls as close substitutes, federal transparency law views them very differently. The relevant laws were written decades ago, in an era when the dichotomy between written words (memos and letters) and spoken words (phone calls and meetings) was much starker than it is today. And because they are written down, emails are treated like formal memos rather than like informal conversations. They are archived, and if journalists or ideologically motivated activists want to get their hands on them, they can.

This argument might make some sense if Yglesias had ever advocated for the alteration of federal statutes like the Electronic Communications Privacy Act or the Third Party Doctrine that have been abused for years by government agencies with complete disregard for wholesale changes in personal communication preferences. (Under the Yglesias theory, phone calls = emails, so the government should need a wiretap warrant to access the contents of these communications, rather than just regular search warrants.)

Furthermore, he's simply wrong about the FOIA's treatment of phone calls and emails. If a public record is generated by a phone call, it too can be accessed with a FOIA request. One example would be 911 calls, which are always recorded and are considered public records.

This was pointed out to Yglesias by USA Today journalist Steve Reilly. Yglesias responded once, indicating he was making a point, rather than aiming for accuracy.

But searching through the hundreds of pieces Yglesias has written won't uncover anything that indicates he feels the American public should also be a beneficiary of updated laws that better reflect the shift away from phone calls as a primary communications method. It's too late for Hillary Clinton to benefit from this proposed alteration, but presumably other politicians Yglesias cares deeply for will find themselves freed from the tyranny of transparency.

Part of Yglesias' argument for a blanket email exception is that these are often informal communications -- not really the sort of thing the government should feel compelled to hand over. Yglesias says there's "no public interest" in documents that don't contain official policy directives, etc. But he's wrong. There's an incredible amount of public interest in government communications, as these often provide glimpses of the government's inner workings that just aren't visible when boiled down to policy memos and talking points.

His next justification, however, is baffling in its inadvertent self-contradiction.

Under current law, if Bill Clinton wants to ask his wife to do something wildly inappropriate as a favor to one of his Clinton Foundation donors, all he has to do is ask her in person. But disclosure laws sit as a constant threat to the adoption and use of efficient communications tools. Your smartphone isn’t primarily for making phone calls, but the stuff you do on your “phone” — communicating with other human beings in your life — is the social and economic equivalent of a phone call. It ought to be legally treated that way too.

In other words, public figures have a number of ways to avoid generating public records about questionable activities. The solution, according to Yglesias, is to GIVE THEM ANOTHER ONE.

Yglesias says there are all sort of communications government officials should never need to worry about being made public. This will supposedly give us a more "effective" government, unconstrained by worries about what the public might think.

There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook:

• Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones.
• A realistic survey of options may require a blunt assessment of the strengths and weaknesses of different members of the team or of outside groups that would be insulting if publicized.
• Policy decisions need to be made with political sustainability in mind, but part of making a politically sustainable policy decision is you don’t come out and say you made the decision with politics in mind.
• Someone may want to describe an actual or potential problem in vivid terms to spur action, without wanting to provoke public panic or hysteria through public discussion.
• If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure.

It's as if Yglesias is completely unaware that there are existing FOIA exemptions that cover the sort of "deliberative documents" that these conversations -- if handled via email -- would generate.

Not that it ultimately matters. Yglesias' argument is in service of Hillary Clinton and those like her, rather than journalists, the public, or anyone else not so wholeheartedly engaged in supporting this particular presidential candidate.

But in the context of the Clinton email scandal -- which Yglesias himself says can't be "ignored" when discussing a shift away from government transparency -- this proposal would have prevented the public from learning the following about the leading presidential candidate:

- She deployed her own private email server despite being warned against doing so, and while receiving input from other officials who hinted it might be a good way to route around public record requirements.

- She handled classified information carelessly and incompetently.

This is stuff the public needs to know, but Yglesias apparently feels anything contained in a public official's inbox should be treated as the ephemeral contents of a phone call or a whispered conversation. And he offers up this proposal with seemingly complete unawareness of how combative the FOIA process already is -- and how often the government stalls, levies fees, abuses exemptions, performs deliberately inadequate searches, etc. to further distance requesters from the records they not only seek, but federal law says they're entitled to.

And, if you think I'm being too harsh on Yglesias for taking an implicit pro-Clinton stance in his call for less government transparency, his track record speaks for itself. This is why we steer clear of partisanship here at Techdirt. This makes advocating for greater transparency, changes in law, etc. sincere, rather than motivated by how it will affect various writers' "teams."

Yglesias has dug himself into a hole with this article. He'll presumably keep his head down when politicians he doesn't care for start making noise about "too much transparency." This post shows he's not quite the journalist he believes he is and his ignorance of the reality of the FOIA process is on full display. In support of god-knows-what, Yglesias is calling for the most common method of government communication to become the government's most-used FOIA dodge. That's a dangerous proposal, especially when issued by a self-professed member of the Fourth Estate, whose job it is to help rein in the government and hold it accountable -- not give it more ideas on how to hide stuff from the people paying for it.

Filed Under: emails, foia, government, journalism, matt yglesias, phone calls, transparency
Companies: vox