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January 22, 2009

Freeing FOIA

FOIA fans will now get a chance to test the Obama administration's avowed commitment to open government. Suits & Sentences recommends that everyone now file a Freedom of Information Act request immediately, and start counting how long the response takes.

As one of his first acts, President Obama reversed a Bush administration order that effectively encouraged government agencies to reject FOIA requests. The Bush policy, in turn, had effectively reversed a Clinton administration policy encouraging liberal FOIA interpretations.

The Bush policy arrived courtesy of then-Attorney General John Ashcroft, one month after the 9/11 terrorist attacks. The Oct. 12, 2001  Ashcroft memo was not subtle; wrote Ashcroft:

"Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information...When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions."

So, precisely what affect did the Bush/Ashcroft approach have toward FOIA requests? That's a subject that deserves closer scrutiny, but in the meantime consider this, courtesy of the invaluable annual FOIA reports:

 In Fiscal 1998, the Justice Department reported having 872 full-time FOIA staffers and a total FOIA budget of $52 million. In Fiscal 2008, the Justice Department's full-time FOIA staffing had fallen to 343 and the department's FOIA spending had fallen to $42 million.

Makes sense, after a fashion. If the Freedom of Information Act is not a priority, might as well spend less on it.

Here's another way to look at it: In 1998, the Justice Department processed 195,105 FOIA requests. Of these, 65,135 -- or 33 percent -- were granted in full. In 2008, Justice processed 61,272 FOIA requests. Of these, 20,743 were granted in full. Hmmm. By this measurement, Justice has been granting about the same percentage of requests.

Assignment: Identify ways to measure how FOIA practice has been affected by the Bush administration approach.


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"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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