FOIA Facts: Two Steps Forward, (At Least) One Step BackBy Scott A. Hodes, Published on June 25, 2007
[Mr. Hodes served at the Department of Justice’s Office of Information and Privacy from 1991 until 1998. His website is InfoPrivacylaw.com, and he is a member of the DC and Maryland bars.]
Public Access to government records is moving forward in at least a couple of areas. The Department of Justice has released a searchable Foreign Agents Registration Act database, available here. While not all FARA documents are available due to some privacy issues that the Department of Justice is still working out, a publicly available database is a great step in the direction of public access to documents.
And the FOIA amendments continue to move along in Congress. The House has passed its version, and Senate approval is pending the removal of a once secret hold put on the legislation by Sen. Jon Kyle of Arizona. Kyle claims he put the hold on the bill because of Department of Justice objections to the bill (which makes me think that the Department of Justice folks all failed civics class because they can offer changes to the bill through different legislators such as the previously mentioned Sen. Kyle). While I have some trepidation about some parts of the amendments, overall they are another step in the right direction in fixing some of the problems in FOIA processing. And I also believe that, eventually, the amendments will pass in some form and become law.
However, recent moves by the administration are at least one step back in public access to government records. The White House has recently taken steps to make visitor logs to the White House inaccessible through the Freedom of Information Act. In the past, the logs were maintained by the Secret Service, which is a component agency of the Department of Homeland Security. A requester could seek the records through a FOIA request to the Secret Service. However, the administration recently brokered a deal through the National Archives in which the logs for the White House and the Vice President’s residence are no longer considered to be maintained by the Secret Service, but by a component of the White House that is not subject to the FOIA. Thus, the only means of access to these logs is through the Presidential Records Act, which withholds the documents until the current administration is long gone from Washington, D.C.
These maneuverings, have been, and continue to be contested by a number of plaintiffs. The issues are whose records are they (White House or Secret Service); and if they belong to the Secret Service, must they be released pursuant to the FOIA. Regardless of the outcome of the litigation, the mere fact that groups have had to go to court to get access to the identity of visitors to the White House and the Vice-President’s residence and office is a huge step back for public access to information. And the bigger question is, what other government records formerly covered by FOIA have been transferred to non-FOIA status recently? The answer to that determines how many steps back have been taken, not just for the FOIA, but for democracy itself.
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