Trump has been aggressive toward the press—can he do anything to prevent his administration from complying with the most important transparency law?
President-elect Donald Trump campaigned on the idea that the media is incompetent, biased, and vindictive. He was also the first candidate in modern US history to refuse to release his tax returns.
Taken together, the inbound Trump administration doesn't look like it's going to be particularly forthcoming or transparent with reporters. But how will his administration deal with the Freedom of Information Act, one of the most powerful tools reporters, activists, and researchers have to gain insight into the inner workings of government?
I'm a member of FOI-L, a listserv for serial FOIA requesters to discuss the intricacies of government sunshine laws. In the days after Trump's election, members of the listserv have been discussing what FOIA—which allows citizens to request specific government documents from federal agencies—will look like under Trump. While we have no way of knowing what Trump will do for sure, open government and journalists are bracing for an administration that could be more obstructionist.
Even if you don't file FOIAs for a living, journalist and nonprofit access to government documents is critical to informing the public. In the last couple years, freedom of information requests have revealed that the FBI had ramped up domestic surveillance, the DEA has a vast license plate-tracking operation, and that Department of Energy employees were analyzing the real-world parallels in Stranger Things, among thousands of other revelations big and small, important and frivolous.
FOIA Under Obama
On his first full day in office, President Obama pledged to run the most transparent executive branch in history, one that "stands on the side not of those who seek to withhold information, but those who seek to make it known," then proceeded to set a record for censoring or denying FOIA requests.
"The US elected a president in 2008, and re-elected him in 2012, who promised to conduct the most transparent administration in history," Ted Bridis, editor of an Associated Press team that won a Pulitzer Prize for its reporting on surveillance of Muslims in New York City after 9/11, wrote to the listserv. "The requester community took a wait-and-see attitude, and we were disappointed when the metrics demonstrated that many things about FOIA got worse, not better."
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: "Same $hit, different administration," one person on the listserv wrote.
Bridis suggested that running an administration that is actually more transparent might be politically smarter than one that ignores or denies reporters' requests. He noted that reporting about the Obama administration's secrecy became more important to a public that is fed up with Washington than reporting about its actual dealings would have been.
"Clinton's senior advisers at the State Department testified that they never searched their email accounts for records responsive to FOIA requests, even though such requests were logged. We saw records redacted for political considerations, despite promises not to do so," he wrote. "Will Trump's administration inherently be better or worse on FOIA? It might not matter. News coverage of government's transparency failures was very popular."
The president's FOIA powers
While there's not much point in speculating about what Trump will do about FOIA, it's important to look at what previous administrations have done to comply with or obstruct reporters' FOIA requests. FOIA is a federal law that would have to be repealed by Congress to go away entirely, and there's no reason to suspect that would actually happen. Though Democratic administrations have tended to support the law more publicly, it is generally seen as an important part of democracy; beyond the federal law, every state has so-called "sunshine" laws that generally mirror the federal statute.
"I don't think the actual disclosure practices changes much from one administration to the next"
Earlier this year, Congress passed the FOIA Improvement Act, which codified Obama's earlier promises about "presumptive disclosure" and also makes it harder for the government to withhold documents that are at least 25 years old. That a highly partisan and obstructionist Congress was able to pass the bill suggests that at least the idea of FOIA is a bipartisan one.
"There is a seriousness on the part of both parties that this statute needs to at the very least exist," Harry Hammitt, editor of Access Reports, a paid-subscription newsletter that has been covering government transparency issues for 25 years, told me. "The statute is really pretty baked into the administrative process by now."
While a presidents don't have the authority to abolish FOIA, they do have the authority to direct their agencies how to respond to requests. 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.
The "Holder Memo," published in 2009 by then-Attorney General Eric Holder, told agencies that they should err on the side of disclosure, even if, "as a technical matter, the records fall within the scope of a FOIA exemption." This was a huge change in policy 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." Similarly, the Ronald Reagan administration vowed to defend its agencies against most legal challenges.
"Historically, Republicans have been dismissive of access to records, which goes kind of hand-in-hand with the business attitudes associated with Republicans," he said. "If the Justice Department says we'll defend you to the hilt if you get sued, that's an attitude that percolates down that says transparency and FOIA is not terribly important."
There is an ongoing debate in the FOIA community as to whether such memos actually have any impact. Most FOIA officers are career bureaucrats who are set in their ways, some say.
"I suspect Trump knows virtually nothing about FOIA"
"I've never seen much real world impact of the various formulations from on high," Dave Bahr, a FOIA attorney, wrote to the listserv. "A stated policy in favor of transparency provides cover to some FOIA officials trying to do the right thing, but I think they would generally do so anyway, regardless of what some memo says. There may be some impact on the margins, but mostly I don't think the actual disclosure practices changes much from one administration to the next."
FOIA Under Trump
Hammitt said Obama set the bar so high with his early pro-FOIA statements that government transparency advocates couldn't help but be disappointed in how it was ultimately implemented. A flurry of requests after the Edward Snowden revelations have overburdened FOIA offices, which have no dedicated funding (FOIA employees are paid out of an agency's general fund).
Obama doesn't get a free pass, but Trump's campaign, along with his general disdain for adversarial reporting, suggest that, at best, FOIA won't be a priority for him.
"President-elect Trump has no record of public service at all, spending the past half century in the private sector, but his record on the campaign trail is deeply discouraging," the Sunlight Foundation wrote in a blog post questioning Trump's commitment to government transparency. "By any reasonable measure, Trump was the least transparent presidential candidate in modern history."
Hammitt, too, raised questions about Trump's history as a businessman.
"I suspect Trump knows virtually nothing about FOIA," Hammitt said. "He's never had to comply with it as a private person, but the fact that he successfully avoided disclosing his taxes shows he understands there's no reason to worry about being transparent unless you're forced to do it. He realizes that Clinton's emails and the DNC's emails can be very damaging if they get disclosed, so I suspect he won't be terribly fond of the idea of FOIA."
One thing we're very likely to see in the next administration is a flurry of new FOIA requests and lawsuits from reinvigorated liberal nonprofit groups such as the American Civil Liberties Union and the Electronic Frontier Foundation, which, to be fair, were active FOIA requesters during the Obama administration as well. You should also keep an eye on Judicial Watch, a conservative group dedicated to filing FOIAs to expose government misconduct that currently has more than 20 open lawsuits against Hillary Clinton and sued the Obama administration more than 300 times.
"Judicial Watch was aggressive under Bush, but they were considerably more aggressive under the Obama administration," Hammitt said. "Groups like ACLU have not filed as many cases under Obama as they might under a conservative president. As the shoe goes on the other foot, organizations like that may start using FOIA much more aggressively."