Deep Dive

The Limits of Transparency and FOIA Under Trump

FOIA

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

April 3, 2020: Knight First Amendment Institute Sues CDC for Coronavirus Communication Records

Knight First Amendment Institute, a leading press advocacy group, filed a lawsuit on April 2nd against the Center for Disease Control and Prevention (CDC) seeking the immediate release of documents related to policies governing CDC employees’ ability to speak to the press and the public about matters relating to the novel coronavirus.

See also: White House Orders Federal Health Agency To Put Lid on High-Level Coronavirus Discussions

According to the complaint, Knight  filed a Freedom of Information Act (FOIA) request on March 19th for all records “relating to policies or procedures governing public communications by CDC employees or contractors about the coronavirus.” The request also sought specific emails sent by the agency’s public affairs officer, as well as records relating to policies governing communication between CDC employees and the Office of Vice President Mike Pence. 

In a press statement about the lawsuit, the Knight Institute said it filed the FOIA request after a number of news stories suggested that the CDC employees had been ordered to consult with the Office of the Vice President before talking to members of the press or public about the pandemic. 

“The White House is promoting inaccurate and misleading claims about the pandemic even as it is restricting CDC employees from speaking to the press and the public,” said Anna Diakun, staff attorney at the Knight First Amendment Institute. “We’re concerned about the reliability of the information the public is now getting from the government, and from a First Amendment standpoint, we’re concerned that public employees are not being permitted to speak candidly, even as private citizens,” she said.

According to the lawsuit, the CDC did respond to the Knight Institute’s FOIA request, although only to inform them that their application for “expediting processing” had been denied because it “failed to show that there is an imminent threat to the life or physical safety of an individual.”

On March 26th, the CDC sent a second letter informing Knight that their request was too broad. According to the complaint, the advocacy organization has not yet heard back from the CDC despite having sent a follow-up request on March 27th narrowing the scope of their request.

Complaint  FOIA Request

March 16, 2020: BuzzFeed Sues CDA and FEMA for Failing to Comply to FOIA Request for Coronavirus-Related Materials

On March 13th,  BuzzFeed reporter Jason Leopold filed a Freedom of Information Act (FOIA) lawsuit in the U.S. District Court for the District of Columbia against the Centers for Disease Control and Prevention (CDC) and three other federal agencies over COVID-19 related records.

On February 12th, BuzzFeed submitted a FOIA request to the CDC and the Federal Emergency Management Agency (FEMA), asking the agencies to produce all emails from their respective directors that mentioned or referred to the Coronavirus, all policy and legal guidance, any and all internal letters and memos, and any and all drafts and final talking points that referred to the virus.

According to the complaint, on February 18th the CDC acknowledged that it had received the request, but that it was “overly broad.” After a bit of back-and-forth, BuzzFeed and the CDC ultimately agreed to limit the timeframe of the request from February 1, 2020 to the present, and to limit the request to the centers’ directors and their immediate aides or deputies.

By the date the lawsuit was filed, however, the CDC hadn’t issued a determination and had yet to produce any records.

FEMA, on the other hand, acknowledged that it received BuzzFeed’s request on February 27th, and granted expedited processing that same day. However, on March 5th, FEMA narrowed the request for records related to the Coronavirus from January 7th, 2020 to February 14th, 2020, and for only 13 specific FEMA executives.

As of the filing date of the lawsuit, FEMA hadn’t issued a determination nor has it released any records.

The suit requests that the court declare that the agencies have violated FOIA, and order them to supply the requested records.

April 44, 2019:  FOIA Suit Filed Over Secret Goverment Database

An NBC affiliate in San Diego and the Reporters Committee for Freedom of the Press filed a suit under the Freedom of Information Act in the U.S. District Court for the District of Columbia against four federal agencies.

The complaint filed against the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services seeks to obtain records requested in a March, 2019 FOIA concerning an alleged secret database the federal government had created on journalists covering immigration issues at the US and Mexico border.

On March 6, 2019 NBC 7 reported that the government had identified and tracked journalist covering the “migrant caravan,”—people who were fleeing Central America and were traveling through Mexico to get to the US border.

“Specifically, NBC 7’s reporting brought to light the existence of a United States government-created ‘secret database of activists, journalists, and social media influencers tied to the migrant caravan’ . . . According to NBC 7’s reporting, the United States government created dossiers on each individual included in the Database. And, in some instances, the government had placed alerts on the passports of individuals included in the Database,” the complaint states.

According to the TV station’s reporting, at least 10 journalists, 7 of whom are US citizens, are included in the database. A spokesperson for Customs and Border Protection told NBC 7 that the agency doesn’t “target” journalists, and has “specific provisions regarding encounters with journalists.”

The ACLU earlier weighed in on the reported existence of the database, calling it “unconstitutional.”

“The First Amendment bars interference with freedom of the press and doesn’t permit the government to retaliate against people based on their viewpoints. That means the government can’t single people out for punishment or harsher treatment simply because it disagrees with the messages they are conveying,” wrote staff attorneys Esha Bhandari and Hugh Handeyside.

CJR ACLU Complaint

November 21, 2018: Knight Sues Intelligence Agencies Over Release of Records on Khashoggi Killing

The Knight First Amendment Institute is suing U.S. intelligence agencies to learn if they complied with a “duty to warn” journalist Jamal Khashoggi about threats to his life.

When an intelligence agency becomes aware of a threat of kidnapping or murder, it is obligated to inform the intended victim, and document and maintain records of its actions. The Knight Institute filed a FOIA request last month seeking records related to the murder, but none of the intelligence agencies have provided it with those documents.

The lawsuit, filed in the U.S. District Court for the District of Columbia, says that before Khashoggi’s murder on October 2, 2018, U.S. intelligence agencies had apparently intercepted communications in which Saudi officials discussed a plan to kidnap Khashoggi. It is not clear, however, what the agencies learned from these conversations, or what steps they took to warn Khashoggi of the threats.

The Committee to Protect Journalists joined Knight in calling for the release of the records.

“The government must explain what it knew of the threat to Khashoggi before his killing, and what, if anything, it did to warn him of that threat,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University in a statement.

 Complaint  FOIA Request   Just Security 

September 20, 2018: First Amendment Coalition Sues DOJ Over Seizure of Reporter’s Records

The First Amendment Coalition filed a lawsuit against the U.S. Department of Justice in federal court in San Francisco alleging that the DOJ violated the Freedom of Information Act (FOIA) by failing to provide the documents related to the secret collection of a journalist’s phone and email records.  FAC submitted two FOIA requests in June to ascertain if the DOJ provided notice to The New York Times or its reporter Ali Watkins in the course of obtaining Watkins’ phone and email records.

The department’s own internal guidelines would compel them to give notice to the journalists if it were to secure his or her records in all but extraordinary circumstances.

“Based on what we know now, it appears the DOJ ignored or somehow bypassed its important procedures for collecting journalists’ records—we want to know if that’s the case and, if so, why,” said FAC Executive Director David Snyder in a press release released by the organization.

The Hill  San Francisco Chronicle Press Release 

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.”

Politico

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.

Buzzfeed

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.

CNN

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.

Reuters

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.”

Vice

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.

Politico
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