Robert Gellman | @Info.Policy: FOIA order a mere specter of reform

Robert Gellman

Early in Shakespeare's play about the Danish prince, Hamlet meets his father's ghost. Hamlet reports to Horatio, his faithful friend, that the ghost said something totally trivial. Horatio doesn't believe it. 'There needs no ghost come from the grave to tell us this,' he says.

This scene comes to mind in trying to discern the implications of December's executive order (13392) on the Freedom of Information Act. The president's order states some platitudes about the importance of FOIA. It directs agencies to appoint a chief FOIA officer, to establish a Requester Service Center and a public liaison, to be more responsive to requesters, and to do a bunch of other procedural things.

In other words, the executive order does nothing meaningful and only slightly rearranges the deck chairs. Why did the president get involved? How did FOIA get to the president's desk? I've asked that question repeatedly in the FOIA community, but I haven't gotten a convincing answer.

The most common explanation is that the White House wanted to head off FOIA reform legislation introduced by Sen. John Cornyn (R-Texas) and supported by Sen. Patrick Leahy (D-Vt.). I have trouble buying that argument. Cornyn proposed a major revision to FOIA, and he isn't likely to be satisfied with a meaningless document.

In any event, there is little evidence that FOIA reform legislation is on a fast track, although you never know what might show up in ethics reform legislation. Some are pressing to bring Congress under the act, but I wouldn't hold my breath. Applying FOIA to Congress would be counterproductive, but that is a subject for another day.

Was the order issued to improve the president's image on information disclosure? This administration has the worst disclosure record in decades.

That conclusion stands, even allowing for the data restrictions that followed 9/11. Any president might have done some of the same things. But the Bush administration has been relentless in removing data from public availability, while remaining largely incompetent in developing coherent policies. The only consistent theme is withhold, withhold, withhold. Image improvement on this front is truly needed.

Nevertheless, the lack of fanfare suggests that image building was not the point. The most common response to the order was a combination of bewilderment and scorn. What knucklehead thought a symbolic statement devoid of content would impress anyone, especially sharp-eyed disclosure supporters in the press?

This brings me to my theory, based on absolutely no evidence, that the Office of Information and Privacy at the Justice Department had a major hand in the executive order. OIP's leadership has for years been politically tone deaf, anti-disclosure and largely useless. However, it has a track record of going to a new attorney general with a proposal on FOIA implementation.

Remember that FOIA memo John Ashcroft issued in 2001? It mostly told agencies to withhold records with abandon. It didn't have much of an effect, but it became a lightning rod for criticism of the administration's information policies. It exemplifies the combination of being substantively useless and politically harmful that characterizes many of the things OIP touches. It may be that Alberto Gonzales' appointment as attorney general prompted OIP to try once again to call attention to itself, and that started the ball rolling toward the executive order.

Just about everyone I know thinks FOIA could stand some legislative and administrative reform. If the new executive order were even a small step in the right direction, it would be welcome. But from where I sit, it doesn't stand a ghost of a chance of making a real difference to anything. n

Robert Gellman is a Washington privacy and information policy consultant.

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