Presumption of openness


By Patrice McDermott



The president has a new opportunity to ensure that the openness policies laid out on his first day of office do not end on his last day. On Jan. 21, 2009, President Obama signed an executive order and two presidential memoranda to usher in what he called a “new era of openness.”

The presidential memo on the Freedom of Information Act ordered federal agencies to operate under a clear presumption of disclosure for information requested under FOIA. “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government,” according to the memo. “The presumption of disclosure should be applied to all decisions involving FOIA.”

Following on the President’s Day one FOIA memo, Attorney General Eric Holder issued new guidelines for implementing the presumption of disclosure. Holder’s March 19, 2009 memo states that agencies “should not withhold information simply because it may do so legally,” and strongly encourages agencies “to make discretionary disclosures of information.” The memo also emphasizes that “FOIA professionals should be mindful of their obligation to work ‘in a spirit of cooperation’ with FOIA requests,” and notes that “[o]pen government requires agencies to work proactively and respond to requests promptly.”

The language in the presidential memo and subsequent FOIA guidance was praised by transparency proponents who had called on President Obama to reverse the secrecy trend of the Bush-era and issue new directives on openness. The directives marked a transformative shift from the prior administration, when the DOJ instructed agencies to essentially withhold whatever they could under FOIA.

Now, the president should support legislation that ensures that the next administration cannot undo his guidance, and resort to the presumption of secrecy that guided agencies in the past. However, much to the chagrin of openness advocates, instead of the hoped-for support of the president for his own language and directions, persistent behind-the-scenes resistance appears to have come from the administration and executive agencies.

It is the time for the president to publicly support the language in the FOIA reform bills moving in Congress.

Two bipartisan Freedom of Information Act bills in Senate (S. 337) and the House (H.R. 653) will codify the administration’s FOIA policy and guidance while strengthening citizens’ access to public information.

Each contains language that closely mirrors the administration’s instructions on FOIA – which otherwise cannot be guaranteed to last into the next administration. While there are differences in the language, the bills would solidify the presumption of openness, requiring records to be released unless there is a specific foreseeable harm or legal requirement to withhold them.

These FOIA reforms are critical for achieving the unprecedented levels of openness promised by the president, on day one, when he announced that “every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.”

McDermott is executive director of OpenTheGovernment.org, and author of “Who Needs to Know? The State of Public Access to Federal Government Information” and numerous articles.

By Patrice McDermott

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