Obama administration urges bypassing Freedom of Information Act to contact agencies directly

Obama administration officials are saying that obtaining government documents through the FOIA is necessarily a lengthy process and contacting government officials directly would yield better results. -db

November 15, 2010
By Aliya Sternstein

The White House’s open government leader said Americans should not bother filing requests for government documents under the Freedom of Information Act and instead should contact open government officials at agencies who can post or e-mail the materials faster.

Beth Noveck, deputy chief technology officer for open government, on Monday said the purpose of the Obama administration’s transparency agenda is to institutionalize a culture in which agencies proactively release data so that disclosing government information is the default. She was addressing complaints about denials of FOIA requests at an event hosted by the American Constitution Society for Law and Policy, a liberal think tank. The talk centered on the conflict between national security and government transparency.

“Why are you writing to the lawyers? We all know it’s going to take months and months. That’s how FOIA works,” said Noveck, who is on leave as a professor at New York Law School, where she researches intellectual property and constitutional law. “The manual nature of the process is so egregious . . . so burdensome.” A more effective way to obtain information would be to contact the designated open government officer at a particular agency — or herself, Noveck said.

For example, in response to public requests, the Patent and Trademark Office this summer partnered with Google to offer bulk downloads of patent materials, such as published applications, grants and assignments, as well as trademark documents, including registrations and applications.

But legal experts debating data disclosure disagreed with Noveck’s advice about bypassing FOIA, arguing that the White House needs to expedite the process. “They should make FOIA work,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. “You shouldn’t have to go around [the process] and call Beth Noveck,” she added, noting the general public probably does not know who she is.

Federal FOIA staff say their offices lack the staff, funds and technology to process requests expeditiously, according to a survey CREW released in late September. One respondent said: “I don’t see anyone providing more money or resources to support transparency in government. The only change is the public seems to think they will get more and so we have seen an increase in requests, or requests coming back again — overwhelming an already overloaded system.”

Sloan added that citizens, not the executive branch, have pushed to make the White House more open. Senior officials frequently tout the fact that this is the first administration to release White House visitor logs. But CREW had to sue the administration to force disclosure of those lists, she noted.

“The government is only as open as we make it,” Sloan said. “It requires us to remain ever vigilant . . . and to insist that it remain open.”

The discussion also touched on the potential harm caused by the publication of classified data, such as the tens of thousands of unredacted documents about the wars in Iraq and Afghanistan posted by the website WikiLeaks. Most of the panelists argued the courts should have more say than the executive branch in deciding what information becomes public.

Jerome A. Barron, a George Washington University law professor who in the early 1970s was a consultant to the Senate Select Committee on Presidential Campaign Activities, aka the Watergate Committee, said, “As was the case at the time of the Pentagon Papers, there is no law that allows U.S. law enforcement to enjoin the press,” or even determine whether WikiLeaks is a journalistic institution.

The papers, which were leaked by a former government contract employee in 1971, contained a secret study on U.S. involvement in the early prosecution of the Vietnam War.

“Humanitarian considerations outweigh First Amendment considerations sometimes,” Barron said. “What I think is most important is a judicial role.”

Vincent Warren, executive director of the Center for Constitutional Rights, added the issues creating tension are not so much secrecy vs. national security, but secrecy vs. wrongdoing in the context of national security. For instance, information documenting interrogation techniques, such as waterboarding, that could be considered international war crimes, should not be covered up, he said. “I pine for the days when the courts would make those kinds of determinations instead of the government making them on their own,” Warren said.

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