Deep Dive

The Limits of Transparency and FOIA Under Trump


Transparency is often an attractive buzzword for new administrations, but following through on open access has proven difficult. President Obama’s record on transparency and the federal Freedom of Information Act was less than stellar. In the opening months of his term, President Trump has shown a similar wariness in allowing private citizens to access public records. Activists are challenging this resistance on the streets and in the courts.

For news, analysis, history & legal background read on.


News & Updates

March 14, 2018: Associated Press Finds Records Withheld, Lost More Than Any Other Time In Past Decade

In reviewing how President Trump’s administration complies to the Freedom of Information Act (FOIA), the Associated Press reports roughly one of every five FOIA requests was completed fully; other requests were partially completed or denied, “78 percent of 823,222 requests, a record over the past decade.”

Associated Press

March 7, 2018: Detailing FOIA Successes Despite Efforts From Obama til Today To Weaken Its Effectiveness

FOIA may be under assault, but it is still proving to be a most useful weapon to uncover the truth.

Unredacted: The National Security Archive Blog

February 26, 2018: EPA Sees Surge in FOIA Lawsuits

A review by Politico of FOIA cases brought against the EPA has found 55 public records lawsuits since Trump’s inauguration. The rise in FOIA requests from the EPA spans the spectrum from “the EPA’s reversals of the Obama administration’s landmark climate change and water rules to pesticide approvals and plans for dealing with the nation’s most polluted toxic waste sites.”


June 12, 2017: The Wall Sreet Journal’s FOIA for Trump’s Recorded Conversations Comes Up Empty

The U.S. Secret Service says it has no tapes from the Trump White House in the face of WSJ FOIA.

Wall Street Journal

May 31, 2017: 250 FOIA Requests and Counting Against the Trump administration So Far

Activists are using the power of the Freedom of Information Act to push the Trump administration to release documents – “a 27 percent increase from last year and a 61 percent increase compared to the same timeframe following former President Barack Obama’s 2013 inauguration, TheDCNF analysis found.”

Daily Caller

May 4, 2017: Republican Chairman Instructs Gov’t Agencies to Withhold Info From FOIA Requests

First reported by Buzzfeed, the chairman of the House Financial Services Committee, Rep Jeb Hensarling (R-Texas) told the Treasury Secretary Steve Mnuchin to exclude certain committee communications from FOIA requests. The AP later confirmed that Hensarling had issued the directive to a dozen government agencies, claiming the committee’s material was sensitive and confidential, and should not be made public. Congress exempted itself from FOIA when it passed the legislation in 1966.


April 14, 2017: White House Won’t Voluntarily Publish Visitor Logs

Despite criticism from transparency advocates and recently FOIA requests to compel disclosure, the White House has announced it will not voluntarily make White House visitor logs public, breaking with precedent established under President Obama. The decision means that visitor logs will not be made public until five years after Trump leaves office.


April 10, 2017: Watchdog Groups Sue for Trump’s Visitor Logs

As reported by Reuters, several watchdog groups filed a FOIA request to compel the Department of Homeland Security to release visitor logs at President Trump’s homes, including the White House, Trump Tower in Manhattan, and Mar-a-Lago in Palm Beach, Florida. The lawsuit followed repeated Democratic calls for disclosure of Trump’s Mar-a-Lago visitor logs.


November 17, 2016: Trump versus Obama on FOIA

What is the value of FOIA and transparency? According to a piece in Vice, “Reporters and open government advocates have been so frustrated with the Obama administration’s record on FOIA that many of them believe a Trump administration won’t change their lives much.”


History & Legal Cases

On his first full day in office (January 21, 2009) President Obama signed an executive order and two presidential memoranda signaling what he called a “new era of openness.” Significant among these was the Presidential Memorandum on the Freedom of Information Act to reestablish a presumption of disclosure for information requested under FOIA. Obama promised his would be “the most transparent administration in history.”

Presidents cannot abolish FOIA, but can direct how executive agencies respond to requests. As reported by Vice, “this is usually done through the Department of Justice and the attorney general, which has the responsibility of defending the federal government against lawsuits, which are particularly common in FOIA cases in which a requester challenges an exemption, redaction, or withholding of documents.”

One of the largest policy shifts under Obama came with a 2009 memo by then-Attorney General Eric Holder. He told agencies to favor disclosure, even if, “as a technical matter, the records fall within the scope of a FOIA exemption.” This signaled a major policy shift from the George W. Bush administration, which noted in a memo that it would defend its agencies against all FOIA lawsuits “unless [the agencies] lack a sound legal basis.”

However, by many measures, Obama’s transparency promises went unfulfilled. As reported by the Associated Press in March 2015, the Obama administration set a new record for denying FOIA requests or for censoring information in the requests.

In June 2016, Obama did sign a bipartisan bill designed to hasten the government’s responses to FOIA requests. The FOIA Improvement Act also codified the presumption of disclosure that Obama reinstated in 2009 (but which had little effect.) The bill also made it more difficult for the government to withhold select information that is more than 25 years old.
“Fighting FOIA with FOIA”

Analysis & Opinion

June 27, 2017: 51 years of FOIA and Why It’s Still Necessary

Michael R. Lemov writes that with Trump’s extensive use of executive orders in the first few months of his administration demands a look behind how and why these orders have been hastily pushed through. FOIA was written over a half century ago to ensure this transparency. It is a timely and sometimes costly process but well worth it. “FOIA has repeatedly exposed executive branch abuses. In 2006, for instance, FOIA was used to find that the FBI was spying on environmental and anti war protesters. In 1971, a FOIA request led to reports that the National Security Agency had spread misinformation about who started the Gulf of Tonkin attack that led to the Vietnam War.”

Baltimore Sun
April 17, 2017: White House Fends Off Transparency Criticism

After announcing that it would not publish visitor logs, the White House faced heated criticism from transparency advocates and defended its position. Sean Spicer cast doubt on just how transparent the Obama administration was, and claimed that the Trump administration was merely returning to pre-Obama practices.

The criticism came not only from Democrats and government watchdog groups. President George W. Bush’s ethics lawyer, Richard Painter, told Politico, “ This is not a transparent White House. He’s nowhere as transparent as Obama because you don’t have the visitor log, you don’t have the president’s tax return—you don’t have a lot of information.” Painted also told Politico he thought Bush was more transparent than Trump because he did release his tax returns, even though he did not release visitor logs.

January 21, 2017: Strengthen FOIA, Press for Financial Disclosure Requirements

Anders Aslund, a senior fellow at the Atlantic Council think tank, wrote an op-ed for the Huffington Post arguing for strengthening FOIA’s power and expanding its reach to allow for requests of full financial disclosure and presidential candidates’ business connections.

The Hill