It's not often that the liberal American Civil Liberties Union and conservative Judicial Watch agree on anything, but the Obama administration's lack of transparency has brought the two together. Obama's Justice Department has proposed a regulatory change that would weaken the Freedom of Information Act. Under the new rules, the government could falsely respond to those who file FOIA requests that a document does not exist if it pertains to an ongoing criminal investigation, concerns a terrorist organization, or a counterintelligence operation involving a foreign nation.Now for a little refresher.
There are two problems with the Obama proposal to allow federal officials to affirmatively assert that a requested document doesn't exist when it does. First, by not citing a specific exemption allowed under the FOIA as grounds for denying a request, the proposal would cut off a requestor from appealing to the courts. By thus creating an area of federal activity that is completely exempt from judicial review, the proposal undercuts due process and other constitutional protections. Second, by creating a justification for government lying to FOIA requestors in one area, a legal precedent is created that sooner or later will be asserted by the government in other areas as well.
Chris Farrell, director of investigations and research for Judicial Watch, may have the answer for why the Obama administration wants the new liar's rule. Judicial Watch has been fighting the White House over a FOIA request for copies of its visitor logs. The White House insists, absurdly, that the documents are theirs, not the property of the Secret Service, and therefore withholdable. "Every day," Farrell notes, "the Obama administration misrepresents and conceals the true, complete record of who is going in and out of the White House -- all the while proclaiming themselves champions of transparency. It's truly Orwellian." The proposed new rule could add a patina of legality to the refusal to acknowledge the existence of the visitors logs as White House documents. Despite its flaws, FOIA is one of the few checks on excessive executive branch power. It should not be weakened by Obama's proposed "license to lie."
Remarks By The President Welcoming Senior Staff And Cabinet Secretaries - 1/21/09
The directives I am giving my administration today on how to interpret the Freedom of Information Act will do just that. For a long time now, there's been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, 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.Via Drudge
To be sure, issues like personal privacy and national security must be treated with the care they demand. But the mere fact that you have the legal power to keep something secret does not mean you should always use it. The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.
I will also hold myself as President to a new standard of openness. Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.
Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency.