Capitol CommentaryLee White, Executive Director
|
||
 White |
Obama Administration Issues New FOIA Guidelines On March 19, 2009, 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 memo rescinds the guidelines issued on October 12, 2001, by former Attorney General John Ashcroft. 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.” At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability 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. Attorney General Holder also established 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 if disclosure is prohibited by law. Under the previous defensibility standard of the rescinded rules, the department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold. In addition to establishing criteria governing the presumption of disclosure, the attorney general’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the attorney general calls on each agency to be fully accountable for its administration of the FOIA. Attorney General Holder’s memo also emphasizes that FOIA is the responsibility of everyone in each agency and that, in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency chief FOIA officers, who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration. Furthermore, the attorney general also directs FOIA professionals to work cooperatively with FOIA requesters, to anticipate interest in records before requests are made, and to make requested records available promptly. The Office of Information Policy will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency. Presidential Records Update Progress also continues to be made with regard to the presidential records issue. On April 1, without any debate, the Senate Homeland Security and Governmental Affairs Committee by voice vote cleared an amendment in the nature of a substitute for the “Presidential Records Reform Act of 2009,” (H.R. 35). The bill is now ready to go to the Senate floor for consideration. On January 7, 2009, the House of Representatives approved the original H.R. 35 by an overwhelmingly bipartisan vote of 359-58. While the two versions of the bill are very similar, there are some changes in the bill that will need to be worked out between the House and Senate, either in conference or informally, before the bill can ultimately be enacted. The major differences between the House and Senate bills are the length of time the incumbent and former president have to review any records upon notice of intended release by the archivist. The House bill had a twenty-day review period with the possibility of an extension for an additional twenty days. The Senate bill changes those time frames to sixty days for the initial review with a thirty-day extension. So the total review period goes from forty days in the House to ninety days in the Senate. The Senate substitute also includes language from the House-passed bill requiring the Archivist of the United States to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal, or destruction of records of the archives. The bill language was inspired by the well-publicized theft of documents from the National Archives by President Clinton’s former National Security Advisor Samuel R. (Sandy) Berger. On April 1, 2005, Berger pleaded guilty to one misdemeanor count of unauthorized removal and retention of classified documents. While the Obama administration has made much progress with regard to improving access to government records, Congress continues to press the case with the White House. House Oversight and Government Reform Committee Chairman Edolphus Towns sent a letter in February to White House Counsel Gregory Craig seeking an update on how the Obama administration is meeting its obligations to preserve e-mails under the Presidential Records Act (PRA) and White House policies on the preservation of e-mail records. The letter cited the problems involving the Bush administration’s apparent failure to preserve thousands of White House e-mails. The committee requested updated information on how new information technology systems were implemented in the closing months of the Bush administration and their status at the beginning of the Obama administration. The letter also inquired as to what policies and procedures were put in place to ensure that official e-mails subject to the Presidential Records Act are captured and preserved by government information technology system. The committee wanted to know what procedures exist for ensuring that all messages sent or received by White House staff on private, nongovernmental e-mail accounts are properly categorized as presidential records or non-presidential records. On April 13, 245,763 pages of Ronald Reagan and George H.W. Bush presidential records were opened for research at their respective libraries. These records were still pending at the end of the George W. Bush administration on January 20, 2009. They were released in accordance with the Presidential Records Act and the new Executive Order 13489 addressing presidential records, which was signed by President Obama on January 21, 2009. In making the announcement, Acting Archivist of the United States Adrienne Thomas said, “I am delighted that the Obama administration has cleared the way to open these presidential records. This action allows the American people to view historical records relating to the presidency and judge for themselves the actions of federal officials.” The Ronald Reagan library opened 244,966 pages of records processed in response to hundreds of Freedom of Information Act (FOIA) requests. These records include the Presidential Briefing Papers collection, Office of Speechwriting research material, and approximately 13,000 pages of declassified records on numerous foreign policy topics. To date, more than ten million pages of presidential records have been processed at the Reagan library (<http://www.reagan.utexas.edu/archives/research.html>). The George H. W. Bush library opened 797 pages of records that deal with Saudi Arabia. To date, more than six million pages of presidential records have been processed at the Bush library (<http://bushlibrary.tamu.edu/research>). Legislation Introduced to Improve the Teaching of American History and Civics In March, Senator Lamar Alexander, along with co-sponsors Senators Kennedy and Byrd, introduced a bill (S. 659) called the “Improving the Teaching and Learning of American History and Civics Act of 2009.” The bill would do the following.
Require states to develop and implement standards for student assessments in U.S. History. However, there would be no federal accountability requirement as there is for reading and mathematics. Allow for the comparison of history and civics test scores of eighth- and twelfth-grade students by establishing a ten-state pilot program that would expand the National Assessment of Education Progress (NAEP). The bill has been referred to the Senate Health, Education, Labor, and Pensions Committee that Senator Kennedy chairs. Senator Byrd is the originator of the Teaching American History grants program and is a senior member of the Appropriations Committee. In addition, Senator Alexander is a former secretary of education and the ranking Republican on the Subcommittee on Children and Families that has jurisdiction over the Department of Education. So the key players are in a position to move this bill quickly. Civil War Preservation Trust In March, the Civil War Preservation Trust unveiled its annual report on the status of the nation’s historic battlegrounds. The report, entitled “History Under Siege: A Guide to America’s Most Endangered Civil War Battlefields,” identifies the most threatened Civil War sites in the United States and what can be done to save them. The report is composed of two parts. The first section presents the ten most endangered battlefields in the nation, providing a brief description of the history and preservation status of each site. The second section briefly describes the fifteen additional “at risk” sites that round out the top twenty-five endangered Civil War battlefields in the United States. To see a copy of the report, visit: <http://www.civilwar.org/historyundersiege/>. The Civil War Preservation Trust is a member of the National Coalition for History. | |