The Freedom of the Press Foundation’s lawsuit against the DoJ has resulted in the release of documents showing that a bill with that was nearly unanimously supported in Congress and the Senate was killed by behind-the-scene lobbying by the Department of Justice, which feared that they would lose the ability to arbitrarily reject Freedom of Information Act requests if the bill passed.
The Obama administration came to power calling itself “the most transparent administration in history” and ordered its agencies to have a “presumption of openness” that safeguarded the public’s right to know what government did on its behalf. It then went on to wage a vicious war on leakers, invoking the Espionage Act against more whistleblowers than all administrations in American history, combined.
The FOIA Act of 2014 used the DoJ’s own wording to describe when government agencies should respond to Freedom of Information requests. Nevertheless, the DoJ vehemently objected to this policy being enshrined in law — and the memos just released in the Freedom of the Press Foundation’s lawsuit shows that the DoJ’s principle fear was that they would have to live up to their own policies, rather than arbitrarily deciding when to tell the public they had no right to know what the government was doing.
Most importantly, the administration was vehemently opposed to the “foreseeable harm” provision, also known as the “presumption of openness” standard. During President Obama’s first few weeks in office, Attorney General Holder made clear that the Justice Department would defend an agency’s decision to withhold information from the public “only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions [in the FOIA], or (2) disclosure is prohibited by law.” The FOIA Act would have simply made this policy the law:
An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption [in the FOIA], or if disclosure is prohibited by law.
Doesn’t sound controversial at all, right? While, the DOJ noted it was “seemingly analogous to the Attorney General’s ‘foreseeable harm’ standard contained in his 2009 FOIA Guidelines,” it referred to this language as “particularly pernicious.” They claimed a slight word change from the DOJ’s own policy would dramatically expand current policy; yet critically, they stated that they would be against it even if the language was exactly the same as their own stated policy.
New documents show the Obama admin aggressively lobbied to kill transparency reform in Congress
[Trevor Timm/Freedom of the Press Foundation]