By Nate Jones
As the Freedom of Information Act Coordinator for the National Security Archive, I oversee the thousands of FOIA requests our organization submits. My favorite part of the job is tearing open packages from the agencies and delving into the freshly declassified documents. Notwithstanding the fascinating documents we regularly receive, often the responses from the agencies are disappointing. Not long ago, the National Security Agency responded to a FOIA request with a printout of a Wikipedia article. More recently, the Central Intelligence Agency redacted a document which it had earlier allowed to be quoted in full in a bestselling history book. Despite President Obama’s clear embrace of open government and FOIA from the first day of his presidency –emphasized in the memos he and Attorney General Holder sent to executive agencies ordering them to adopt improved transparency measures– we at the Archive have yet to see the government’s full embrace of this “presumption of disclosure.”
The cliché goes that Obama’s attempt to change executive policy is akin to recharting the course of a supertanker. But in regard to FOIA policy, the Archive’s director, Thomas Blanton, suggests that commanding a “fleet of 90 ships” is a more apt metaphor—one ship for each of the approximately 90 federal agencies. The Archive’s recent FOIA audit shows that despite a clear signal from the top, many of these agencies have failed to improve their FOIA policies. Only 13 of 90 agencies responded to our FOIA request by providing documents showing concrete changes in practice as a result of the Obama and Holder memos. A whopping 35 agencies claimed that they had no documents which illustrated a change in policy.
But there are strong signs that the Obama administration is serious about continuing to compel its “fleet” to improve the FOIA process. The day after the Archive published its audit, Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer sent a memo to each agency head lauding their early efforts to improve transparency, but sternly reminding them that “more work remains to be done.” Perhaps this rejoinder came as a result of the audit’s finding that the oldest outstanding FOIA request was more than 18 years old and that 30 agencies have FOIA backlogs that are getting worse rather than better.
Despite these troubling findings, access to information under Obama’s watch is beginning to improve. The president ordered the creation of a National Declassification Center to begin clearing the 409 million page backlog at the US National Archives. The annual budget for the National Archives and Presidential Libraries has been increased. Some agencies, the Department of State is a notable example, continue to regularly and effectively release requested documents and reduce their backlogs. In May, the Senate unanimously passed The Faster FOIA Act. If the bill becomes law, it will install a panel to study the FOIA request process and hopefully enact measures to reduce the years which requestors must often wait.
But in order to truly improve FOIA policy, the federal employees who actually decide what information should be withheld from the American people–the “sailors” on the 90 ships, if we keep with the metaphor–must also embrace openness. A recent Information Security Oversight Office report to the president highlights the disconnect between those pronouncing openness and those protecting secrets. The report states that those holding security clearances “do not challenge classification decisions as much as should be expected in a robust system.” From my perch, it appears that the Attorney General’s instruction to not withhold information merely “as a technical matter” and his encouragement to “make discretionary disclosures of information” are generally not implemented at the sailor level.
The president was correct when he wrote that FOIA is “the most prominent expression of a profound national commitment to ensuring an open government.” However, for this “profound national commitment” to be fulfilled, the president must continue to compel his bureaucratic fleet to embrace FOIA and–most challengingly–he must instill that all classifiers and declassifiers “manning the decks” accept the presumption of the public’s right to know.
August 2010
Nate Jones is FOIA Coordinator at the NSA
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