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The United States Supreme Court ruled on March 4 that federal government agencies may invoke the “deliberative process privilege” to conceal documents from release under the Freedom of Information Act. It was widely viewed as a setback for government transparency.
Sierra Club sued the Fish and Wildlife Service for “biological opinions” in which they found a rule proposed by the Environmental Protection Agency (EPA) “for the intake of cooling water from power plants and industrial facilities would impermissibly affect threatened and endangered species.”
As Brett Hartle, the government affairs director at the Center for Biological Diversity, stated, “This decision will make it easier for political appointees to meddle secretly in scientific decisions, gut protections for our air and water, and push more of our wildlife toward extinction.” He demanded Congress take immediate steps to end this so-called privilege that favors the influence of corporations and special interests over government.
The decision by the Supreme Court is the latest example of the erosion in government openness over the past 10-to-15 years. Although Presidents Donald Trump and Barack Obama both claimed to lead the “most transparent” administrations ever, they did not leave legacies of transparency.
Trump’s administration set new lows for the censoring and withholding government documents from journalists and citizens who request records under the Freedom of Information Act (FOIA). Media organizations filed more FOIA lawsuits under Trump than the combined presidencies of Obama and George W. Bush.
Agency backlogs increased substantially in 2020, partly because of the COVID-19 pandemic.
Yet, as the Associated Press reported, Obama censored and withheld a record number of files from requesters, and even spent $36 million in lawsuits against requests in his final year in office.
There is minimal interest in Congress in approaching this as a pressing problem. Though President Joe Biden’s administration shows a modest interest in restoring government transparency, a wide coalition of activists, journalists, civil liberties, human rights, press freedom, and other nonprofit organizations demand stronger action.
Sunshine Week (March 15-20) is an opportunity to take stock of the state of FOIA in the United States and renew the push among journalists, transparency advocates, and press freedom and various civil society organizations for meaningful changes to address a system in crisis.
At the Federalist Society’s National Lawyers Convention in 2019, Attorney General Bill Barr attacked the Freedom of Information Act, a law passed in the United States over fifty years ago to ensure public access to government records.
“There is no FOIA for Congress or the Courts,” Barr complained. “Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.”
“That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people,” Barr added.
Well before the pandemic, during 2018’s Sunshine Week, the Associated Press reported, “The federal government censored, withheld or said it couldn’t find records sought by citizens, journalists and others more often [in 2017]”—Trump’s first year in office—”than at any point in the past decade.”
The AP also found that around 78 percent of requesters received censored files or no records at all, and the Trump administration spent $40.6 million to defend decisions to withhold federal files in court.
The number of times the federal government insisted it would be illegal under U.S. laws to release requested material “nearly doubled to 63,749.” Such claims, the AP noted, can range from officials maintaining the release of information that would jeopardize national security, reveal trade secrets, or expose private identifying information. (Each claim can be abused to conveniently shield records that are in the public interest from disclosure.)
“Under the records law, citizens and foreigners can compel the U.S. government to turn over copies of federal records for no or little cost,” but the AP pointed to a “disturbing trend,” where the government reversed itself when challenged for improperly withholding files in “more than one-in-three cases.”
Trump withheld tax returns, fought the release of White House visitor logs, “returned” a Senate torture report to Congress to ensure it stayed secret, revoked a reporting rule for U.S. drone strikes, and broke a pledge by disclosing only some of the remaining records on President John F. Kennedy’s assassination.
When it came to the EPA, Interior Department, and other agencies that oversee policies related to the environment and human health, the secrecy abuses of the Trump administration were particularly hazardous.
As a letter to members of Congress from a coalition of environmental organizations pointed out, delays occurred to shield EPA Administrators Scott Pruitt and Andrew Wheeler. Both had ties to the fossil fuel industry, and only on July 8, 2018—after Pruitt resigned due to “career-ending scandals”—did the EPA agree to search for records from Pruitt’s personal email accounts. (Notably, many of the scandals occurred as a result of information gleaned from other FOIA requests.)
“The Center for Biological Diversity requested records generated in connection with meetings and discussions between EPA and CropLife America, an industry trade group that represents and advocates on behalf of pesticide manufacturers, formulators, and distributors,” according to the letter. “EPA effectively delayed producing the requested records that would reveal improper influence by industry groups,” and only released them in November after Trump lost the election.
More than 125 regulations aimed at protecting air, water, and land were weakened or entirely wiped out while Trump was president, the Washington Post reported. Disregarding or frustrating FOIA requests helped Trump officials conceal the influence toxic industries had over them.
According to the American Civil Liberties Union (ACLU), the Trump administration secretly loosened the rules of engagement for U.S. drone strikes and weakened “safeguards” intended to prevent civilian deaths. The ACLU submitted a FOIA request in October 2017 and was denied a copy of the new rules.
The civil liberties organization sued the Trump administration and won in federal court on September 29, 2020, but they still do not have a copy of the rules.
To some degree, Trump’s FOIA record represented a continuation of secrecy that defined President Barack Obama’s administration.
In 2015, the last year of Obama’s presidency, “More than three-quarters of requesters received censored files or nothing at all,” the Associated Press reported. It was an “unprecedented development” and not much lower than the rate of censorship under Trump.
The Obama administration spent $36.2 million in 2016 to fight FOIA requests in court (Trump spent $40.6 million). And like the Trump administration, in more than one-third of cases, the government acknowledged it was wrong to deny the release of records when challenged.
Journalist Jason Leopold, who is well-known for his FOIA journalism, and the Freedom of the Press Foundation exposed how the Obama administration collaborated with the Justice Department to kill the FOIA Oversight and Implementation Act of 2014.
“The Justice Department, speaking on behalf of the administration, opposed codifying into law Obama’s presidential memorandum in which he instructed agencies to act with the ‘presumption of openness.’ To see the administration memorialize its position in documents was shocking,” Leopold declared.
Obama officials even opposed “the creation of an online FOIA portal” to help the process for fulfilling requests become more efficient.
The White House maintained the legislation would somehow “increase the FOIA backlog, result in astronomical costs, and cause unforeseen problems with processing requests.”
Anne Weismann, who was the executive director of the Campaign for Accountability and involved in efforts to reform FOIA, called this notion “ludicrous.”
“The breadth of their objections and lack of evidence to back up their claims and their absolute opposition to codifying Obama’s memo expose the lie that is the administration’s policy,” Weismann added.
A version of the reform bill was finally passed into law in July 2016, as senators and representatives marked the law’s 50th anniversary.
Before the ACLU challenged the Trump administration for records on the administration’s legal and factual basis for U.S. drone strikes, the ACLU fought the Obama administration for similar records.
The CIA tried to pretend their “targeted killing” program did not exist, but in a FOIA lawsuit, a federal appeals court ruled the CIA could not “deny its interest in the program.”
Still, the ACLU lost their lawsuit in 2016. The organization was unable to pry loose files, which would show “when, where, and against whom drone strikes can be authorized,” and why officials believe such strikes comply with international law.
The Center for Constitutional Rights sought the disclosure of video and photos of Guantanamo Bay prisoner Mohammed al Qahtani so attorneys for Qahtani could publicly confirm whether he was tortured. Separately, 16 U.S. media outlets asked a federal court to order the release of videos showing Abu Wa’el Dhiab, a Guantanamo Bay prisoner who was force-fed while on hunger strike.
In both cases, the Obama administration succeeded in preventing the disclosure of videos that would have likely exposed torture or abuse.
Yet, perhaps the most notorious act of secrecy involved instructions to government lawyers to oppose the release of photos of detainee abuse and torture in Iraq. Obama argued the release of photos would have a “chilling effect” on investigations into detainee abuse, an absurd suggestion since his administration did not attempt to prosecute anyone for torture.
After a federal court determined the Obama administration had not properly justified keeping each photo secret, officials turned around and claimed the Islamic State of Iraq and Syria required the “re-classification” of nearly two thousand photos. Only 200 indistinguishable photos of detainee abuse, like close-ups showing cuts, bruises, swelling, etc, saw the light of day.
Officials in the Obama administration also tried to claim credit for being the first administration to release White House visitor logs, but the records were only disclosed because the Obama administration lost a FOIA lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) and Judicial Watch.
On March 15, Attorney General Merrick Garland delivered a statement for Sunshine Week that celebrated FOIA. Garland said throughout his career, and at the Justice Department, he has “seen firsthand the importance” of FOIA and recognizes the responsibility the Justice Department has to ensure FOIA’s “faithful and effective administration.”
Garland acknowledged the strain FOIA professionals were under during the COVID-19 pandemic and mentioned that over 770,000 requests were processed. Yet crucial context for understanding this number was not shared, such as how frequently requests were denied or censored and withheld from the public.
A coalition of organizations led by the ACLU and the Knight First Amendment Institute at Columbia University sent a letter [PDF] to Biden on February 22 that outlined several steps his administration could take if the administration truly is committed to transparency.
It urges the Biden administration to “direct agencies to proactively disclose records” instead of waiting for FOIA requests or litigation. For example, the Justice Department could automatically publish final legal opinions from the Office of Legal Counsel (OLC) that represent binding legal interpretations for the executive branch. (Such opinions have been at the center of FOIA lawsuits for records on the legality of torture techniques and drone strikes.)
Additionally, the organization recommends enforcement of the “foreseeable harm standard” when handling FOIA requests. The standard, codified in 2016, is that if the government cannot reasonably foresee that disclosure would cause harm it should process the document. Officials could provide a particularized explanation that connected potential harm to specific information requested instead of giving a boilerplate explanation to justify secrecy.
“FOIA offices and activities are underfunded, under-resourced, and beleaguered by enormous backlogs of records requests,” the coalition notes. “Some FOIA requests languish for years, if not decades.” Funds could be increased to prioritize recordkeeping and the processing of requests.
If Garland believes in the words he read for Sunshine Week, he can immediately order a review of all FOIA litigation and dismiss cases that do not fit Biden’s stated commitment to transparency.
The Justice Department could also “assume greater leadership over FOIA implementation,” and instead of sabotaging reform legislation, advocate for changes that would make the process more responsive to journalists and citizens. They could support an amendment to the “deliberative process privilege” exemption, which the Supreme Court recently bolstered.
Biden is already failing in one respect—his administration refuses to release visitor logs for “virtual meetings,” which POLITICO points out is the “primary mode of interaction until the coronavirus pandemic eases.”
It is incredibly easy to be more transparent than the Trump administration, but merely being a bit better than Trump is unacceptable. The last decade has left FOIA in utter disrepair and requires attention immediately.