Remember those heady days in January 2009? Obama's first week as President. We Dems were so disgusted with eight years of George Bush's "secret governance" that we were ready to believe that anything the Obama Administration did could only be a major improvement.
I remember being particularly joyous that one of our new President's first-day-in-office pledges was to fulfill his campaign promise to lead the "most transparent administration in history."
He said: "My Administration is committed to creating an unprecedented level of openness in Government." While laying out principles he wished to see his agencies adopt in the proceeding months, he ordered federal officials to err on the side of openness. The President wrote that FOIA should be "administered with a clear presumption: In the face of doubt, openness prevails." That was to be the default position.
Following through on the President's memorandum, Obama's new attorney general, Eric Holder, issued a directive to emphasize the importance of the FOIA law's purpose and "to ensure that it is realized in practice."
Holder ordered that unless there was a compelling state interest in secrecy, our citizenry was entitled to know what their government was up to. It was to be a real change in mind set. The public was not the enemy!
Like millions of others, I expected full disclosure of Bush's secret wiretapping, torture of prisoners, the CIA'S secret prisons and its destruction of interrogation videotapes. I also expected an end to the use of the "state secrets privilege" as a way of keeping embarrassing cases out of court.
Well, all I can say is that I, having worked in the Kennedy Administration, should have known better. A lot better. I should have known that many government employees seem to have a predilection for secrecy. Maybe it comes from Bacon's dictum that "knowledge is power." Or maybe they think it's just safer not to call attention to oneself.
Whatever the reasons, I sure wasn't ready for what came next.
Since Obama's historic first day in office, numerous studies and surveys have been carried out by researchers in and out of government. The most recentof these has been published by TRAC -- the Transactional Records Access Clearing House, a research unit at Syracuse University. Its findings are not pretty.
The Attorney General's memorandum said the Department of Justice would "defend a denial of a FOIA request only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law."
The FOIA law has been amended many times and it appears that most of the amendments have tilted toward finding more and more reasons NOT to disclose. Even a partial list of exclusions presents information seekers with a formidable task.
The TRAC research considered whether or not a key component of that March 2009 directive which set forth new "defensive standards" for FOIA litigation has been obeyed.
Yet here are two shockers:
TRAC says a vailable evidence indicates that no affirmative steps needed to implement the new defensive standards were ever taken. Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper;
Furthermore, TRAC and many others charge that, a fter three years, the Freedom of Information Act -- the basic building block of government transparency -- is still in shackles. According to Trevor Timm of the Electronic Frontier Foundation (EFF), the Obama Administration "has been just as secretive--if not more so--than his predecessors, and the Freedom of Information Act (FOIA) has become the prime example of his administration's lack of progress."
Similarly, TRAC found little evidence that these new standards are actually being followed. In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold.