FOIA: So Hot Right Now

JENNY LEDIG—A president riding into office on the mantra “drain the swamp” might suggest an administration that would embrace the purpose of the Freedom of Information Act, facilitating government transparency and accountability. But now, after President Trump’s 100th day in office, his team so far shows no intention of increasing transparency under his administration.

History has shown us that when it comes to the Freedom of Information Act (FOIA), even with the best of intentions, a president’s aspirations can often diverge from reality when in office. Thankfully, the party not occupying the White House is always eager to offer constructive criticism, from Representative Jason Chaffetz’s “FOIA is Broken: A Report” to Representative Henry Waxman’s “Secrecy in the Bush Administration.”

Shortly after beginning his second term, President Obama claimed his administration was the most transparent in history. He proudly touted that, “[e]very visitor that comes into the White House is now part of the public record. Every law we pass and every rule we implement we put online for everyone to see.” Yet he was often criticized for the way his administration handled FOIA requests, namely the speed of response times, the limited disclosures, and extensive FOIA litigation battles.

While it is premature to fully assess how the current administration is handling FOIA requests, those disenchanted requesters hoping for a break with the new administration are unlikely to be the beneficiaries of a more forthcoming FOIA policy. In fact, President Trump is backing away from several transparency benchmarks the Obama administration established.

The Freedom of Information Act was passed in 1967 after a long-fought battle led by a strong coalition of journalists and legislators that jointly sought information from the burgeoning administrative state. It is unsurprising then, that the legislation that was advocated for by journalists and legislators is viewed as an essential tool for those constituencies to access information, and therefore by no means a favorite piece of legislation for an administration. No matter which party occupies the White House, it is natural for the President to view FOIA requests as an inconvenience. But the perception that FOIA foils plans is likely to be even more pronounced in an administration with a more contentious relationship with the press and that is very outspoken in deriding the opposition party.

However, the notion that FOIA is primarily for journalists and the party out of power no longer reflects the reality of which constituencies make up the majority of FOIA requesters. Journalists only constitute 7.6 percent of requesters. The primary “drain” on the system actually comes from the business community. In fact, five companies make up 11% of the requests, primarily seeking information from the SEC about other companies. Processing these five companies’ requests alone have a total processing cost for the government of $52 million, and while there’s a charge fee per request, the government has only recouped $608,000, in part due to loopholes that allow an entity to claim to the media fee waiver if it publishes any of the information on its website. With this in mind, President Trump’s experience as a businessman might influence the way he perceives the utility of FOIA.

The 2016 FOIA Improvement Act codified the Obama administration’s position that the presumption is that the materials requested are for public disclosure. The bill passing in a bitterly divided Congress signals that both parties are at least nominally committed to giving FOIA real teeth. Despite the progress made by the FOIA Improvement Act, open government advocates believe it is still too weak. A primary criticism is that the Obama administration finalized the Bush-era understanding that the White House is not an agency for the purposes of FOIA, and is therefore exempt from FOIA disclosure obligations. An administration that has been met with great skepticism over conflicts of interest since winning the election is only bound to draw more adamant opposition to a blanket White House exemption from FOIA.

President Trump’s continued While neither action is required by law, releasing tax returns when seeking the Oval seemed to be a non-negotiable for all serious presidential hopefuls, and disclosing visitor logs once securing the Oval struck many Americans as a positive reform that would be too politically unpopular to abandon.

Trump’s unique brand of politics, namely how typical political rules do not apply to him, is drawing more attention to the desirability of affirmative obligations when political pressure alone is insufficient. Protests have drawn large crowds demanding President Trump release his tax returns, and some states are considering legislation that would require a candidate to release her tax returns in order to be on the ballot.

The organizing around these efforts could easily shift attention to further reforming FOIA or at least result in increased FOIA litigation. The Electronic Privacy Information Center is suing the Internal Revenue Service for not releasing President Trump’s tax returns after a FOIA request, and Citizens for Responsibility and Ethics in Washington (CREW), the Knight First Amendment Institute at Columbia University, and the National Security Archive have jointly filed suit against the Trump administration for not releasing the logs. The Trump administration points to a 2013 D.C. Circuit Court of Appeals decision, ironically written by might-have-been Supreme Court Justice Merrick Garland, which said most of the visitor logs could be classified as presidential records and therefore exempt from FOIA.

Champions of FOIA might have a glimmer of hope in expecting fewer fights over disclosures. The President and his Republican-held Congress have vehemently criticized the regulatory state and government employees, and Trump proposes slashing the budgets of many agencies. Fighting FOIA requests tooth-and-nail would be inconsistent with the fiscal plank of their platform considering the associated costs. Because the presumption is for disclosure, denying FOIA requests take time and money to defend. The government spent $36 million litigating FOIA requests in President Obama’s final year in office alone, constituting one of the largest regulatory expenditures.

However, so far in the Trump administration, fiscal arguments are being used to shield against disclosure. President Trump defended his decision not to continue the operation of, which housed visitor logs and salaries, claiming it would cost taxpayers too much money to publish them. However, the administration would likely save more money by releasing the logs than constantly defending the moratorium. By the administration’s own estimate, the cost savings would only amount to $70,000 over the next four years, a true drop in the bucket in a federal budget of billions.

Some critics are fomenting a backlash to the backlash—namely that the visitor logs are not the Holy Grail they’re made out to be by the media. These critics further lambast President Obama for only releasing selective White House visitor logs, which White House Press Secretary Sean Spicer commented was “the faux attempt that the Obama administration put out, where they would scrub who they didn’t want put out, didn’t serve anyone well.” However, defenders of the Obama administration policy rebut that the “selectivity” was tailored to conceal national security attendees and Sasha and Malia’s friends rather than constituting an absolute moratorium.

From concerns over the erasure of “deep data” to the increasing importance of knowing for example, when Rep. Devin Nunes visited the White House and who signed him in, FOIA is certainly trending, and all eyes will be on the Trump administration’s approach to the landmark legislation.

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