A New Era of Openness Coming?

By William Fisher

As President Barack Obama’s Department of Justice issued sweeping new guidelines to reverse the secrecy policies of former president George W. Bush, Congress weighed in with proposed new legislation to liberalize the Freedom of Information Act, and a federal judge ordered the Central Intelligence Agency to produce unedited summaries of some 3,000 documents related to its admitted destruction of 92 videotapes of prisoners being subjected to extremely harsh interrogation techniques.

Last week, Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA.

The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government."

One of the first tests of the Obama Administration’s new approach came in
Federal Court, where the American Civil Liberties Union (ACLU) asked a federal judge to order the CIA to produce full and unedited copies of the 3,000 summaries, transcripts, reconstructions and memoranda relating to the interrogation videotapes they destroyed.

When the CIA refused to publicly disclose the list -- and the names of witnesses who may have viewed the videotapes – Judge Alvin K. Hellerstein ordered an independent but non-public review of that material next week to determine whether it should be publicly disclosed.

“The government is still needlessly withholding information about these tapes from the public, despite the fact that the CIA's use of torture is well known,” said Amrit Singh, staff attorney with the ACLU. “Full disclosure of the CIA's illegal interrogation methods is long overdue and the agency must be held accountable for flouting the rule of law.”

Meanwhile, Congress is taking action to end the Bush Administration’s government-wide efforts to increase the classification of documents to thwart citizens’ requests for information under the FOIA.

The House of Representatives approved a measure to end what its sponsor calls pseudoclassification – creation of many new and ambiguous classification terms. According to the bill’s sponsor, Representative Steve Driehaus, a Democrat from Ohio, the bill would not only be a boon for the public, but an attempt to promote “a common language within government.”

In an editorial, The New York Times noted that “Official use only” has been “slapped wholesale on documents, even though there’s no common standard for what that means. The House measure would correct that by having the national archivist prescribe how and what to classify, with particular emphasis on cutting back categories and ending the pro forma withholding of nonsensitive information requested by the public.”

Rep. Driehaus says there were 362,000 FOIA requests last year, and almost a third of them still remain to be processed because of overclassification. The bill requires classifiers to be trained for the task and to put their names on what they deem out of bounds, subject to review by the Inspectors General of the various departments.

And in the Senate, lawmakers also signaled their intention to improve government transparency. Senators Patrick Leahy, a liberal Vermont Democrat and conservative Texas Republican John Cornyn – frequently legislative adversaries -- introduced the “Open FOIA” Act, mandating that government agencies comply swiftly and thoroughly with FOIA requests.

The New York Times editorial charged that “By last count, the federal government employs 107 different categories of restricted information — one off-limits category zanily pronounces, ‘sensitive but unclassified’. This muddle of mislabeling seems designed not to protect legitimate secrets but to empower bureaucrats. The end result has been to greatly blunt the Freedom of Information Act’s mandate to let the public in on the business of government, plain and simple.”

The new FOIA guidelines issued by Attorney General Holder rescind the guidelines issued in 2001 by President Bush’s first attorney general, John Ashcroft.

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner," Holder said. "The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The new FOIA guidelines address both application of the presumption of
disclosure and the effective administration of the FOIA across the government.

As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial 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 Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.

In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU. That motion is still pending.

The agency's latest submission came in response to an August 20, 2008 court order issued in the context of the contempt motion. That order required the agency to produce "a list of any summaries, transcripts, or memoranda regarding the [destroyed tapes] and of any reconstruction of the records' contents" as well as a list of witnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction. The CIA will provide these lists to the court for in camera review on March 26, 2009.

Earlier this month, the CIA acknowledged it destroyed 92 tapes of interrogations. The tapes, some of which show CIA operatives subjecting suspects to extremely harsh interrogation methods, should have been identified and processed for the ACLU in response to its Freedom of Information Act request demanding information on the treatment and interrogation of detainees in U.S. custody.

The tapes were also withheld from the 9/11 Commission, appointed by former President Bush and Congress, which had formally requested that the CIA hand over transcripts and recordings documenting the interrogation of CIA prisoners.