There is a legitimate need to retain as confidential any information which would compromise national security if released, or which would unnecessarily violate a citizen’s privacy. But the executive branch is tempted to keep other information secret, unnecessarily secret, for political reasons.
A president, or his administration, might choose to deny access to information because of how it would affect policy debates or elections. To prevent the improper withholding of information, FOIA creates a process by which voters can formally request information.
In the nearly fifty years since FOIA was introduced, the Obama administration, along with the Johnson administration, set a record for obstructing citizen access to information. Ted Bridis, writing for the Associated Press (AP), analyzes information requests during the year 2014:
The Obama administration set a new record again for more often than ever censoring government files or outright denying access to them last year under the U.S. Freedom of Information Act, according to a new analysis of federal data by The Associated Press.
Historians draw a number of parallels between the Obama and Johnson administrations. Both have a technocratic aspect which nudges both of them toward secrecy, and therefore draws both of them into conflict with the FOIA legislation.
President Lyndon Johnson was concerned that if he released information about the Vietnam War, it might block legislation he wanted from Congress, or influence elections against him. In order to learn the facts of the situation, and to allow the voters to make informed decisions, Congressman Donald Rumsfeld sponsored the FOIA legislation in the 1960s. Rumsfeld writes:
on a number of occasions I joined other members of Congress in expressing concern about what appeared to be the White House’s attempts to manage the news on the war. This was an understandable inclination on the administration’s part, since no doubt they felt the media coverage of the war was unfair. But the administration made matters worse with their seeming reluctance to provide much, if any, documentation that would have given members of Congress a better sense of what was taking place.
The administrations seek ways to evade the requirements of FOIA. Legal teams working for the White House find loopholes and technicalities in the text of the act, and use these as excuses for withholding information.
Ted Bridis lists some of the tactics which the Obama administration uses to deny access to information. The AP report states:
The government took longer to turn over files when it provided any, said more regularly that it couldn’t find documents, and refused a record number of times to turn over files quickly that might be especially newsworthy.
The situations in the 1960s and in 2014 are similar. Donald Rumsfeld promoted FOIA as a response to LBJ’s secrecy about Vietnam.
Information feeds decisions: whether decisions made by individual citizens, or made by Congress, people can make rational choices only on the basis of data. Rumsfeld describes the political process of shepherding the bill through Congress so that FOIA could become law:
By this time, I had become a cosponsor and advocate for the Freedom of Information Act (FOIA), authored by Congressman John Moss, a Democrat from California. The legislation, which passed unanimously in 1966, was crafted in reaction to the Johnson administration’s behavior. As a Democrat, Moss was in the awkward position of promoting a bill that went against the express wishes of the President, so I helped him develop the legislation and move it through the House. For me, support of the bill came down to one long-held belief: Good judgments require accurate information.
Like LBJ, Obama has kept details of his policy development secret. In the half-century between Johnson and Obama, legal scholars have found the loopholes and technicalities which Obama can exploit to ensure that voters do not have access to information.
In addition to legal maneuvering, the Obama administration has admitted that it has also resorted to illegal tactics. Questioned by Ted Bridis for the AP report,
It also acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law – but only when it was challenged.
Another tactic is simply to act very slowly in responding to FOIA requests. If the administration flatly denies a request, the requestor can file an appeal.
But if the administration simply fails to respond, the requestor has no decision to bring to appeal. The administration might even finally grant the data requested, but several years after the request, by which time the information is often useless. Ted Bridis continues:
Its backlog of unanswered requests at year’s end grew remarkably by 55 percent to more than 200,000.
While the number of FOIA requests has increased from year to year, the Obama administration has decreased the number and percentage of them to which it responds. This leads to a growing frustration on the part of voters who want to know what the government is doing.
The Obama White House has spent time and money researching new legal maneuvers it can use to justify withholding information from citizens.
The government’s new figures, published Tuesday, covered all requests to 100 federal agencies during fiscal 2014 under the Freedom of Information law, which is heralded globally as a model for transparent government. They showed that despite disappointments and failed promises by the White House to make meaningful improvements in the way it releases records, the law was more popular than ever. Citizens, journalists, businesses and others made a record 714,231 requests for information. The U.S. spent a record $434 million trying to keep up. It also spent about $28 million on lawyers’ fees to keep records secret.
Another tactic is to grant a FOIA request, but to release only a redacted version of a text, meaning that key words, phrases, and even entire paragraphs of the desired text have been blacked out. This can be done with black ink on photocopies, or electronically if there is no physical ‘hard copy’ of the text to be released.
Naturally, this is done with the pretense that the information denied is either vital to national security, or would violate a citizen’s privacy:
The government responded to 647,142 requests, a 4 percent decrease over the previous year. It more than ever censored materials it turned over or fully denied access to them, in 250,581 cases or 39 percent of all requests. Sometimes, the government censored only a few words or an employee’s phone number, but other times it completely marked out nearly every paragraph on pages.
With a wide variety of tactics, the Obama administration denied a record number of requests. The amount of information denied, and the number of citizens requesting such information, are significant.
This reflects a declining inclination among the electorate to trust the Obama administration. Such secretive behavior creates suspicion in the minds of the voters.
On 215,584 other occasions, the government said it couldn’t find records, a person refused to pay for copies or the government determined the request to be unreasonable or improper.
There is considerable distance between the spirit of FOIA and its implementation. The law intended to release more information has become a set of technicalities by which less information is released.
There is a conflict of interest in the dynamic in which the administration decides which data are exempt from the FOIA and therefore not to be released.
Anyone who seeks information through the law is generally supposed to get it unless disclosure would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas. It cited such exceptions a record 554,969 times last year.
In one amusing case of FOIA maneuvering, the staff of First Lady Michelle Obama attempted to use the law to conceal the fact that staffers were concerned about the administration’s reaction to the cost of the First Lady’s dresses:
the U.S. should not withhold or censor government files merely because they might be embarrassing, but federal employees last year regularly misapplied the law. In emails that AP obtained from the National Archives and Records Administration about who pays for Michelle Obama’s expensive dresses, the agency blacked-out a sentence under part of the law intended to shield personal, private information, such as Social Security numbers, phone numbers or home addresses. But it failed to censor the same passage on a subsequent page.The sentence: “We live in constant fear of upsetting the WH (White House).”
While the narrative about the First Lady’s fashion expenses is entertaining, other FOIA topics are more serious. In a republic with freely elected representatives, the ordinary citizens who cast ballots need realistic knowledge about who has been hired to do what for the government, and the size of the paychecks involved.
Ted Bridis goes on to quote his fellow AP writer, Gary Pruitt, who sees the FOIA situation as reflecting on the basis of democracy itself: voters need accurate data about the regime in Washington.
“What we discovered reaffirmed what we have seen all too frequently in recent years,” Pruitt wrote in a column published this week. “The systems created to give citizens information about their government are badly broken and getting worse all the time.”
While FOIA was first introduced in the context of the Vietnam War, it is now useful in many areas of policy. The details of the 2012 terrorist attack on American diplomats in Benghazi are still not clear; FOIA could shed light on these.
The details of Barack Obama’s education and how his handlers found him and created a persona and a political career for him are still unclear. It would be in the best interests of the voters to know who is shaping the president’s speeches and policies.
Hillary Clinton’s senior thesis at Wellesley was kept from the public during Bill Clinton’s presidency (1993 to 2001), despite the fact that she took an active and official role in shaping policy.
Information alone does not suffice for a functional electorate, because some amount of reflection and analysis is needed on top of that information. But information is certainly necessary.
