Washington College of Law logo
 
American University logo
Collaboration on Government Secrecy

Collaboration on Government Secrecy ("CGS")


Mission Statement

The Collaboration on Government Secrecy ("CGS") is a non-partisan educational project devoted to openness in government, freedom of information, government transparency, and the study of "government secrecy" in the United States and internationally. Its mission is to, among other things:

About

The Collaboration on Government Secrecy ("CGS") was created in 2007 as a non-partisan academic project devoted to the study of government openness and secrecy. Formed under the auspices of the Program on Law and Government in the Washington College of Law ("WCL"), at American University in Washington, D.C., and led by Law and Government Fellow Daniel J. Metcalfe, it stands as the first such entity of its kind at any law school in the United States. It operates this year in conjunction with both the JD and LLM/SJD degree programs at WCL and is designed to afford law students interested in this area of legal specialization the opportunity to gain both scholarly and practical experience, including in the growing field of international transparency. CGS is headed by former Department of Justice Office of Information and Privacy Director Dan Metcalfe, who is a Faculty Fellow in Law and Government at WCL and also serves as CGS's executive director.

Staff

Frequently Asked Questions

Useful Links

Other Similar Centers

Sunshine Week 2008

Sunshine Week 2009

Holder FOIA Memorandum

CGS in the News

Upcoming Events

CGS Program Speakers

Federal Access Statutes

TRANSPARENCY IN THE OBAMA ADMINISTRATION

In a sweeping "Day One" memorandum to the heads of all executive branch departments and agencies that has the effect of an executive order, President Barack Obama declared his firm commitment to government transparency: "My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. . . . Government should be transparent." Entitled "Transparency and Open Government," this unprecedented presidential directive calls upon federal agencies to "harness new technologies" to make information about their operations "readily available to the public" and to "provide[] information for citizens about what their Government is doing" in their name. Toward that end, and the prompt end of an era of secrecy, President Obama directed his incoming Chief Technology Officer (an Associate Director of the White House's Office of Science and Technology Policy) to coordinate the development of a set of "recommendations for an Open Government Directive," within the next 120 days (i.e., by May 21) -- as the basis for a directive "that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum." And in a companion directive on the Freedom of Information Act directly, the White House announced, President Obama "instruct[ed] the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context."

In other words, on January 21 two 120-day clocks began ticking toward action required by May 21, and then well into the Obama Administration thereafter -- all of which provides a unique opportunity for those who are most interested in and concerned about government transparency and secrecy (as two sides of the same coin), and government information policy more broadly, to involve themselves in these areas of public policy development and implementation. And they may do so, as President Obama has put it, in a manner that is both "participatory" and "collaborative" with federal government agencies.

On May 21, the Obama Administration did not meet this deadline, but rather established a process by which further work will be done, with public participation, toward that end. (This process can be tracked through the following link: http://www.whitehouse.gov/open/blog/.) Details and up-to-date status information are below.

OBAMA ADMINISTRATION SECRECY/TRANSPARENCY SCORECARD

Since January 20, 2009, the Administration of President Barack Obama has begun to keep his presidential campaign commitment to create "the most transparent administration in history," something that would stand in stark contrast to the preceding Administration of George W. Bush. See, e.g., "Tell Us More," Legal Times (Dec. 8, 2008). This requires prompt and palpable change in a range of subject areas -- including Freedom of Information Act policy and implementation; the use of the state secrets privilege; national security classification; the proliferation of "pseudosecrecy"; and the use of advanced technologies to foster greater transparency and information dissemination in myriad ways, under the rubric of what often is called "E-Government." See, e.g., The Nature of Government Secrecy, 26 Gov't Info. Quarterly 305 (2009). But despite getting off to a stunningly positive start, the Obama Administration encountered surprising difficulty in meeting the commensurately high expectations of the open-in-government community, as it has badly stumbled in several key respects and struggled with the practicalities of bringing about change -- all of which has been the source of considerable concern. See, e.g., Sunshine Not So Bright: FOIA Implementation Lags Behind, 34 Admin. & Reg. Law News 5 (Summer 2009).

In time, however, it can be expected that the Obama Administration will succeed in tipping the balance from secrecy to transparency -- either despite or because of the overwhelming reliance that it initially has placed on technological advances over the timely implementation of substantive policy changes -- thereby delivering on the strong promise for open government that it holds. This process can be aided by careful tracking of the progress that is or is not made to date, culminating in an overall assessment of transparency/secrecy in specific subject areas. It also should be positively impacted by CGS's upcoming FOIA Community Conference, entitled "Transparency in the Obama Administration -- A First-Year Assessment," which will be conducted with participation by officials of the Obama Administration on January 20, 2010. Details and up-to-date status information are below.

Transparency

  1. January 20 -- Inaugural Address ("[we will] do our business in the light of day")
  2. January 21 -- Presidential Memorandum on "Transparency and Open Government" issued, calling for development of "recommendations for an Open Government Directive," but its May 21 deadline later falls by wayside
  3. January 21 -- Presidential Memorandum on "Freedom of Information Act" issued
  4. January 21 -- Signing Ceremony ("For a long time now, there's been too much secrecy in this city.")
  5. January 21 -- White House Press Release ("the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive [sic] within 120 days")
  6. February 9 -- Justice Department announces commencement of state secrets privilege review, but on same day pointedly continues advocacy of far-reaching Bush Administration position before Ninth Circuit in Mohamed v. Jeppesen
  7. March 19 -- Holder FOIA Memorandum issued very quickly, but contains many deficiencies
  8. April 16 -- Four OLC memoranda on torture disclosed, but others remain withheld
  9. April 24 -- White House Press Secretary Robert Gibbs announces that government will not appeal Second Circuit ruling in ACLU litigation requiring disclosure of photos of alleged abuse of military detainees abroad, but President Obama subsequently reverses the decision
  10. April 29 -- Presidential Press Conference includes rare statement by President Obama on state secrets privilege (asking for patience so that "we . . . have the time to effectively think through, what exactly should an overarching reform of that doctrine take")
  11. May 21 -- White House Open Government Initiative Web site established, but promised issuance of Open Government Directive (or at least development of recommendations for same) is greatly delayed
  12. May 21 -- Formal Remarks by the President on National Security includes statement on state secrets privilege that "my administration is nearing completion of a thorough review of this practice," but White House then falls silent on the subject
  13. May 27 -- Presidential Memorandum on Classified Information and Controlled Unclassified Information (pseudosecrecy) issued, calling for action in each subject area within 90 days (i.e., by August 25), but action kept obscured from public view
  14. June 17 -- Statement of Attorney General Eric H. Holder about completion of Justice Department's state secrets privilege review ("I think we will make [it] public within days"), but issuance is delayed (reportedly held up by White House) for a period of several months
  15. August 24 -- CIA Inspector General report on torture released with fewer redactions, but only after release deadline is extended several times
  16. Late in August -- Justice Department publishes updated edition of "Justice Department Guide to the Freedom of Information Act," but does not include extensive guidance on making of discretionary disclosures under Exemption 5, inter alia, developed and used for implementation of identical "foreseeable harm" standard in Clinton Administration
  17. September 4 -- White House announces new policy of disclosure of names of White House visitors, a step described by Columbia Journalism Review as "a truly stunning conclusion to a long series of lawsuits" and by White House as "historic" and "groundbreaking," but more than a month later DHS still acts otherwise
  18. September 8 -- Opening of Office of Government Information Services (OGIS) at National Archives and Records Administration (led by Founding Director Miriam M. Nisbet, former Deputy Director of OIP), but long after required by statute
  19. September 9 -- White House affirmatively discloses information of issuance to executive branch officials of ethics waivers, prompting POGO Executive Director Danielle Brian to observe: "This is a big step in the right direction toward open government [that] gives a taste of transparency and we are thirsty for more."
  20. September 18 -- Justice Department releases OLC opinions dealing with privacy implications of "Einstein 2" government surveillance program for monitoring federal Internet traffic for cybersecurity purposes, but without explanation of why the two opinions (dated Jan. 29 and Aug. 14, 2009) were not released earlier
  21. September 23 -- Justice Department finally issues AG memorandum entitled "Policies and Procedures Governing Invocation of the State Secrets Privilege," consisting largely of procedural reforms, but among other shortcomings does not release results of state secrets litigation case review begun on Feb. 9 and announces that new policy, effective as of Oct. 1, 2009, will not necessarily apply to pending litigation cases (e.g., Jeppesen and Jewel)
  22. September 30 -- Associate Attorney General testifies on FOIA implementation before Senate Judiciary Committee, together with director of NARA's newly established Office of Government Information Services, but in response to questioning indicates that Justice Department is widely applying Holder FOIA Memorandum to pending cases in litigation, in spite of all evidence to contrary
  23. October 5 -- Obama Administration officials describe features of Open Government Directive, but speak of it as something still "weeks away," and to be issued without further public review or input
  24. October 23 -- United States Postal Regulatory Commission announces that it has become "the first Federal agency to adopt new Freedom of Information Act [regulations] that specifically respond to the President's call for a presumption of openness and disclosure for all decisions involving FOIA" (emphasis in original), but . . . see the underscored language
  25. October 30 -- Issuance of "Statement of Attorney General Eric Holder on Assertion of the State Secrets Privilege in Shubert V. [sic] Obama," but still without even any mention of results of Justice Department's pending (i.e., since Feb. 9, 2009) state secrets litigation case review
  26. October 30 -- White House announces "a voluntary disclosure policy governing [sic] White House visitor access records," in settlement of FOIA lawsuits brought by Citizens for Responsibility and Ethics in Washington, but it (a) applies only to records "that are 90 to 120 days old" (voluntarily denominated a "short time lag"), (b) does not apply to "records created between January 20 and September 15, 2009," and (c) contemplates that FOIA requests may be made in addition to such voluntary disclosure "but only if the requests are [inter alia] narrow"

Summary Assessments/Grades

FOIA Policy

A stunning, totally unprecedented "Day One" start; principles and exhortations that met even exceedingly high expectations; high-level attention that calls for commensurate levels of implementation. Grade: A+

FOIA Policy Implementation

Exceptionally quick issuance of AG FOIA Memorandum, but unfortunately quick to a fault; reinstatement of AG Reno "foreseeable harm" standard with twin emphasis on discretionary disclosure as "new" FOIA policy; disappointing failure to address backlogs, need for revision of agency FOIA regulations, and continued need for proper implementation of 2007 FOIA amendments; use of recycled "administrative hurdles" term and inapt focus on "partial disclosure"; inexplicable refusal to apply policy to all pending cases; missed opportunities to foster policy governmentwide through ongoing litigation review and use of existing Reno policy-dissemination means; limited governmentwide guidance and policy dissemination to date, including updating of "FOIA Guide" without utilization of Clinton-era guidance on discretionary disclosure and glaring failure to update DOJ's own model "FOIA Reference Guide" from May 2006; relatively little appreciable evidence of increased FOIA disclosure; disappointing maintenance of Bush Administration policy positions on OA status and Cheney FBI records; embarrassing 180-degree turn in litigation on detainee abuse photographs; continued maintenance of extreme positions in litigation; limited oversight testimony before Senate Judiciary Committee due to questions about litigation implementation; Act's fundamental implementation for Secret Service records of White House visitors purported to give way to White House policy of "voluntary" disclosure of such records, under heading of "[t]ransparency like you've never seen before." Grade: D+

State Secrets Privilege

Surprisingly strong and consistent continuation of Bush Administration positions in litigation, even in most extreme incarnations, causing great concern; positive step in undertaking comprehensive reviews both of doctrine and of pending cases early on (Feb. 9), but viewed as none-too-soon step in light of perceived Bush Administration abuses; series of mixed messages from President Obama, AG Holder, and White House afterward regarding timing of new policy issuance; no announcement of any review outcome more than 7 months after commencement and several months after AG Holder prediction of issuance "within days"; procedural reforms and substantive standard of "significant harm" established late in September, effective as of Oct. 1, without applicability to pending litigation cases such as Mohamed v. Jeppesen; results of pending case reviews still not released more than 8 months after commencement. Grade: D

National Security Classification

Quick announcement (on May 27) of Administration intent to revise or replace existing EO, much sooner than in previous administrations; laudatory 90-day timetable for first stage of review; remarkably open process for public participation in initial review process, both through Web-based forum and public outreach by ISOO; then inexplicable and disappointing refusal of formal request for participation to include review of "actual language" drafted; initial 90-day deadline for inter-agency review process not publicly met, as inter-agency disagreements reportedly cause months-long delays. Grade: B-

Pseudosecrecy

Quick announcement of Administration intent to tackle difficult subject (on May 27), but only commensurate with need to do so given status quo left by Bush Administration; confusing continuation for time being of flawed "Controlled Unclassified Information (CUI)" concept under existing Bush Administration policy, with inadequate recognition of confusion existing governmentwide; externally welcome establishment of "CUI Office" within NARA; only limited public participation in, or awareness of, substance of ongoing policy-development processes. Grade: C+

Transparency Technology Policy

A stunning "Day One" start, establishing unprecedented principles, objective of "Open Government Directive," and highly ambitious timetable (120-day deadline) that met nearly all expectations; subsequent concerns that privacy obligations not taken fully into consideration and that focus on longer-term technology-based solutions unduly eclipses short-term policy improvements in areas such as the FOIA. Grade: A-

Technology Policy Implementation

Surprising delay in appointment of CIO and assembly of information-technology team; smart use of OSTP within EOP for governmentwide focus, but incomplete follow-up on initial agency involvement; highly disappointing failure to meet May 21 deadline for mandated development of "recommendations for an Open Government Directive," or even to acknowledge its plain breach, after its reaffirmance during Sunshine Week in mid-March; establishment of extraordinary process of Web-based public participation in delayed development of Open Government Directive; issuance of Open Government Directive delayed until late in October at earliest; confusion and concern created by subsequent suggestion (later seemingly confirmed) that delayed process will bypass mandated "recommendation" stage. Grade: D

Affirmative Disclosure (e.g., OLC opinions)

Highly laudatory disclosure of several (though not all) OLC "torture" memos; eventual, repeatedly delayed disclosure of controversial CIA inspector general report, albeit with very heavy redactions; positive initial disclosure of some White House visitor logs after period of policy review; disclosure of OLC surveillance/privacy memos, albeit somewhat belated; adoption of deeply flawed "voluntary disclosure policy" for White House visitor logs that provides for regular albeit limited disclosure and purports to "govern" public access notwithstanding "agency record" status of such records under FOIA; extremely slow policy implementation on governmentwide basis due to greatly delayed development/issuance of Open Government Directive. Grade: C+

Overall Grade Thus Far: C+

Secrecy

  1. February 9 -- Obama Justice Department continues advocacy of far-reaching Bush Administration position on state secrets privilege before Ninth Circuit in Mohamed v. Jeppesen
  2. February 10 -- White House continues Bush Administration litigation position on non-FOIA status of White House Office of Administration
  3. March 19 -- Holder FOIA Memorandum issued with numerous deficiencies
  4. March 26 -- Columbia Journalism Review points out major Holder FOIA Memorandum deficiency of applying new policy standard to pending cases only "if practicable"
  5. April 3 -- Obama Justice Department advocates Bush Administration position on state secrets privilege regarding allegedly illegal warrantless wiretap program in Jewel v. NSA
  6. April 13 -- Obama Justice Department specifically refuses to say even whether it applied standards of Holder FOIA Memorandum to records withheld in Electronic Frontier Foundation v. Department of Justice
  7. April 19 -- Electronic Frontier Foundation's FOIA Litigation for Accountable Government Project issues "Obama's Transparency Promise: We're Still Waiting" (pointing to absence of any increased information disclosure as "part of the routine, systemic 'presumption of openness' that the President and Attorney General have promised")
  8. April 24 -- According to The Washington Post, internal Obama Administration debates over whether to disclose four OLC torture memoranda included "angst" over political considerations
  9. May 14 -- Obama Administration takes same position as Bush Administration in CREW v. DHS regarding nondisclosure of Secret Service visitor logs on lobbyists
  10. May 15 -- White House announces policy that its Office of Administration "is not subject to FOIA and related authorities"
  11. May 21 -- Obama Administration breaches May 21 deadline for Open Government Directive, with no completion date in sight
  12. June 8 -- American Bar Association publishes article pointing to "deficiencies that sadly will impair the implementation of Obama Administration FOIA policy across the executive branch"
  13. June 12 -- Justice Department seeks en banc rehearing of Ninth Circuit's April 28 state secrets decision in Mohamed v. Jeppesen
  14. June 19 -- Justice Department argues that interview given by then-Vice President Dick Cheney to FBI in Valerie Plame leak investigation should remain secret for many years
  15. June 19 -- Attorney General Holder gives technology-themed speech to judicial conference that does not mention transparency
  16. June 19 -- Justice Department publicly states that Holder FOIA Memorandum was limited due to its "burden" concerns and that only pro-disclosure instance it can cite is April disclosure of OLC torture memoranda
  17. June 20 -- According to Newsweek article entitled "Obama Closes Door on Openness," Obama Administration has in practice taken "hard line" on transparency that "appears to be no accident"
  18. June 22 -- Republican National Committee is able to assemble press release entitled, "Transparency We Can Believe In -- New Reports Show Obama's Promises for Transparency Are Actually Opaque"
  19. June 25 -- Obama Administration actions on "transparency" mocked at length on The Daily Show
  20. July 8 -- According to Access Reports, a recent step taken by the Food and Drug Administration "appears to be the first substantial effort of any agency [apart from the Justice Department] to actually implement President Obama's transparency memo"
  21. July 8 -- OMB Watch issues report emphasizing urgency of need to "overhaul" the "problematic system" of "pseudosecrecy"
  22. July 21 -- Justice Department repeats and expands its argument in CREW v. DOJ that interview given by then-Vice President Dick Cheney to FBI in Valerie Plame leak investigation should remain secret
  23. July 22 -- According to Legal Times: "The Obama administration says it won't name those who participated in practice sessions with its nominee, Sonia Sotomayor, refusing even to give a clear reason for keeping the information hidden."
  24. July 27 -- White House continues Bush Administration policy of refusing to release names of White House visitors, pending further review in connection with ongoing litigation
  25. August 5 -- Justice Department's OIP publicly states that federal agencies "need not" update their FOIA regulations for implementation of Obama Administration's FOIA policy or provisions of 2007 FOIA Amendments
  26. August 7 -- Solicitor General seeks Supreme Court review of Second Circuit ruling in ACLU litigation requiring disclosure of photos of alleged abuse of detainees held by U.S. authorities abroad
  27. August 10 -- Solicitor General seeks en banc review of Ninth Circuit disclosure ruling on state secrets privilege in Mohamed v. Jeppesen
  28. August 24 -- CGS begins compilation of "Obama Administration Secrecy/Transparency Scorecard," noting that while "it can be expected that the Obama Administration will succeed in tipping the balance from secrecy to transparency," the balance to date tilts decidedly in favor of the former
  29. August 25 -- According to The Atlantic, the Justice Department's state secrets privilege review is "finally completed but the schedule for its public release is still TBD, as is what policy the president prefers"
  30. August 26 -- Chief Judge Royce C. Lamberth, in a state secrets case styled Horn v. Huddle, orders Justice Department to grant security clearances to non-government counsel
  31. September 2 -- White House refuses formal request of open-government advocates for opportunity to provide public comment on actual language of national security executive order revisions before issuance
  32. September 3 -- According to White House spokesman, work on Open Government Directive is "moving apace after a temporary thinning of the ranks at the end of August"
  33. September 8 -- OpenTheGovernment.org issues its "Secrecy Report Card" for 2009, concluding that "[t]he Obama administration so far has a very mixed record on its promise of unprecedented openness" and that implementation of the Holder FOIA Memorandum in ongoing litigation "does not seem to be the trend"
  34. September 10 -- Speaking at "Gov 2.0 Summit," White House officials indicate that they will bypass mandated recommendation stage of Open Government Directive and instead proceed to issue it "within three or four weeks"
  35. September 15 -- FBI tells Congress that although it "is working to fully comply with the Attorney General's recent Freedom of Information Act (FOIA) guidelines," it no longer regularly "review[s] all possible cross references [sometimes known as 'see references'] in order to identify those that may be responsive [to a FOIA request], because the time and resources required to conduct this review and verification would bring the FBI's current FOIA process to a standstill"
  36. September 16 -- White House criticized for collecting and storing comments and videos placed on its social-networking sites such as Facebook, Twitter, and YouTube without notifying or asking the consent of the site users
  37. September 23 -- On same day that new state secrets privilege policy memorandum is issued, Justice Department continues to advocate Bush Administration state secrets position in domestic telecommunications monitoring case, Al-Haramain Islamic Foundation v. Obama (In re National Security Agency Telecommunications Litigation)
  38. October 1 -- Court rejects Obama Justice Department's unprecedented, extremely far-reaching Exemption 7(A) argument in Cheney interview case, CREW v. DOJ
  39. October 8 -- DHS maintains position that Secret Service's White House visitor logs "are not agency records subject to the FOIA"
  40. October 9 -- According to Reporters Committee for Freedom of the Press's News Media Update, "[t]he agreement journalists must sign to become embedded with a military unit in Afghanistan now [for the first time] includes a prohibition against any photographic or video coverage of U.S. troops killed in action"
  41. October 9 -- New disclosure deadline established in case in which Obama Justice Department in effect argues that telecom company seeking immunity for "warrantless surveillance" activity is "an arm of government" for Exemption 5 purposes, EFF v. ODNI
  42. October 14 -- Local Daily News newspaper editorializes: "We welcomed the Obama administration's policy shift last spring, but noted at the time that its practical worth would depend on how forcefully the administration follows through on its pledge to . . . improve citizens' access to their government. Absent strict oversight of the agencies' handling of FOIA requests, the new instructions are just talk. Sadly, there appears to have little, if any, oversight on the part of the new administration."
  43. October 19 -- According to Reporters Committee for Freedom of the Press's News Media Update: "Despite the Obama administration's recent legal settlement to begin releasing White House visitor logs later this year, it has denied a different public interest group's recent request for those same [types of] records in the meantime."
  44. October 25 -- In an editorial entitled "The Cover-Up Continues," The New York Times offers this harsh view: "The Obama administration has clung for so long to the Bush administration's expansive claims of national security and executive power that it is in danger of turning President George W. Bush's cover-up of abuses committed in the name of fighting terrorism into President Barack Obama's cover-up."
  45. October 26 -- More than two months after expiration of 90-day deadline for preparation of revisions of executive order on national security classification, inter-agency review process continues to delay action
  46. October 27 -- According to Government Executive, Obama Administration's long-overdue Open Government Directive will be delayed additional "weeks," and still without intermediary recommendation step called for in President Obama's transparency and open government memorandum of January 21
  47. October 27 -- According to Secrecy News, White House official responsible for development and issuance of Open Government Directive now says it "will [not] come out [until later] this fall"
  48. October 27 -- Justice Department succeeds in obtaining en banc rehearing of Ninth Circuit's April 28 state secrets decision in Mohamed v. Jeppesen, continuing to advocate far-reaching Bush Administration position notwithstanding Obama Administration's new state secrets policy statement of September 23
  49. October 28 -- White House Press Secretary acknowledges that White House visitor logs cannot be expected to be disclosed until end of December and, even at that, might not include records of any visit prior to September 15
  50. October 30 -- Under remarkable heading of "[t]ransparency like you've never seen before," White House's new "voluntary disclosure policy" for "White House visitor access records" seeks to "govern" access to such Secret Service records despite the FOIA
  51. November 4 -- According to a critique published by Wesleyan University President Michael S. Roth on the Huffington Post under the heading "One Year Later: No Time for Dancing": "The Left feels betrayed [by the Obama Administration] because the pace of change has been frustratingly slow, particularly in regard to unemployment, the war and governmental transparency. . . . We must remind President Obama that Candidate Obama was right about the virtues of transparency."
  52. November 4 -- A critique of Obama Administration transparency and Justice Department FOIA policy implementation goes so far as to claim that President Obama's Administration "is quickly becoming more secretive than Bush's ever was" and that "[i]t's hard to imagine, but we were better off under Bush"
  53. November 5 -- Justice Department's "FOIA Reference Guide," previously a model for all other federal agencies, inexplicably celebrates another anniversary in not being updated, even after two sets of FOIA amendments and a change of administration policy, since May 2006


Amendment of the FOIA

The history of the Freedom of Information Act traces back more than six decades, with major legislative developments occurring with remarkable regularity approximately every ten years. The FOIA was presaged by the enactment of the Administrative Procedure Act, 5 U.S.C. § 1002, in 1946. A decade later, in 1955 and 1956, Congress began the legislative process that culminated in the FOIA's enactment in 1966. Slightly less than a decade after that, and spurred by what came to be known as the "Watergate scandal," Congress enacted major FOIA amendments at the end of 1974. And then in 1986 and again in 1996, on what became a decade-long cycle, the FOIA was the subject of further major revisions. The FOIA Amendments of 2007, delayed perhaps by an unprecedented presidential executive order issued in 2005 (see below), continued that pattern of legislative activity.

Several bills were considered during the 110th Congress prior to enactment of the 2007 FOIA Amendments. One, H.R. 1309, was passed by the House on March 14, 2007. Another, S. 849, was passed by the Senate on August 3. It was reintroduced in revised form as S. 2427 on December 6 and then was modified and introduced on December 14 as S. 2488 -- which was passed by the Senate on that same day and then was passed by the House on December 18. This bill was signed into law on the last possible day before it would have become law automatically under Art. I, Sec. 7 of the Constitution, on December 31, 2007. This amendment process raised the question of whether Congress would "break the mold" of the FOIA's longstanding ten-year amendment cycle by amending the Act again before the passage of another decade. See The Cycle Continues: Congress Amends the FOIA in 2007, 33 Admin. & Reg. L. News 11 (Spring 2008). It did not take Congress long to answer that question, as it soon thereafter amended the Act once again, through the "OPEN FOIA Act of 2009," in October 2009. Details of the FOIA amendment legislative history and implementation are below.

FOIA Executive Order

In December 2005, an unprecedented presidential executive order was issued regarding the Freedom of Information Act. Entitled "Improving Agency Disclosure of Information," Executive Order 13,392 called upon all federal agencies to improve their handling of FOIA requests in multiple ways, including though the appointment of a "Chief FOIA Officer" and the development of a "FOIA Improvement Plan" at each agency, and to regularly report on their progress through the Department of Justice. According to multiple reports, including by the Government Accountability Office, the promise of this Executive Order's strong initial governmentwide implementation ultimately was not met. Details and up-to-date status information are below.

FOIA in the Supreme Court

In the more than four decades since its enactment, the Freedom of Information Act has been the subject of thirty major decisions by the United States Supreme Court. From 1973 to 1985 alone, the Supreme Court issued nineteen FOIA decisions, often at a rate of two or more per year, as the interpretation of the Act's provisions developed extensively through the evolution of case law. Over the past two decades, as the FOIA has matured, the pace has slowed, with only ten FOIA decisions issued by the Court during this period. There have been several "near misses" over the years, in which a FOIA case has reached the Supreme Court but the Court's consideration of the case has fallen through, sometimes at the last minute, due to external events such as withdrawal of the underlying FOIA request or a legislative enactment. In a handful of instances, the Court has declined to take a FOIA case even though the party seeking certiorari was the government agency. Additionally, the Court has had occasion to address the need for the issuance of a stay in a FOIA case, in order to preserve the status quo pending further appeal, and it has done so through opinions written by its members in their Circuit Justice capacity. Details and up-to-date status information are below.

JANUARY 11, 2008 UPDATE: Today the Supreme Court granted certiorari in Taylor v. Sturgell, a FOIA case that presents the question of whether a FOIA requester can properly be precluded, under the principles of res judicata and "virtual representation," from pursuing a FOIA request for the same records that were unsuccessfully sued for by a "close associate" who was represented by the same attorney. The Court of Appeals for the District of Columbia Circuit, in an opinion authored by Chief Circuit Judge Douglas H. Ginsburg, ruled against the requester on that basis in June 2007. This is the first FOIA case to be taken by the Court in four years, albeit on a procedural issue that transcends the statute, and it is expected to be decided before the end of the Court's current Term. The D.C. Circuit's decision, certiorari petition, and all briefs filed with the Court are below.

JUNE 12, 2008 UPDATE: Today the Supreme Court issued its decision in Taylor v. Sturgell, in which it reversed the lower court's decision (written by Circuit Judge Douglas H. Ginsburg of the Court of Appeals for the District of Columbia Circuit) and ruled that, as a sound general rule, courts "should not proscribe or confine successive FOIA suits [i.e., for the same records] by different requesters." Writing for a unanimous Court, Justice Ruth Bader Ginsburg rejected the D.C. Circuit's "broad theory of virtual representation," concluding that while "it is theoretically possible that several persons could coordinate to mount a series of repetitive [FOIA] lawsuits," there is insufficient "risk" of "vexatious litigation" or "abusive FOIA suits" to warrant such a harsh preclusive rule for successive lawsuits brought under the FOIA. This is the thirtieth FOIA case decided at the Supreme Court level (and, putting aside the commonality of the two jurists' names, might be the first time in which the Supreme Court has reversed a decision written by a failed nominee to the Court.)

"Post-9/11" FOIA Litigation

In the years since the terrorist attacks of September 11, 2001, a new category of Freedom of Information Act litigation cases has arisen in the wake of those events and their aftermath. Such cases involve new fact patterns and issues that are distinctly "post-9/11" in character, as they deal with information consisting of or bearing upon matters of "homeland security" that prior to 2001 were barely part of the national landscape. While many such cases are adjudicated under Exemption 2 of the FOIA, a comprehensive compilation includes cases decided under other FOIA exemptions as well. Details and up-to-date status information are below.

Pseudosecrecy

A relatively little-known part of the government secrecy realm is the growing use by federal agencies of document labels to "safeguard" unclassified records and information. Such labels -- most notably, "Sensitive But Unclassified (SBU)," "For Official Use Only (FOUO)," and "Law Enforcement Sensitive (LES)" -- have proliferated largely since 9/11, to the point at which they are the cause of widespread "secrecy" concerns (and often misperceptions) both inside and outside of government. Simply put, the use of a label such as "SBU" to safeguard a document within an agency (or when shared with other governmental counterparts) does not necessarily mean that it falls within a FOIA exemption or is "secret" in the commonly understood sense of that word. To be sure, there are some such designations that are connected to the disclosure prohibitions of certain Exemption 3 statutes -- such as "Sensitive Security Information (SSI)" and "Protected Critical Infrastructure Information (PCII)" -- but these few are exceptions to the rule, with more than 100 different safeguarding labels now in use throughout the executive branch. This area of federal information policy, which can be referred to as "pseudosecrecy," has been the subject of protracted efforts within the executive branch to improve the clarity and consistency of agency information-safeguarding practices for unclassified records over the past half-dozen years.

Shortly after 9/11, an initiative was begun, under the auspices of the newly created White House Office of Homeland Security, to establish a standard category of homeland security-related information that could be "safeguarded" by federal agencies and possibly protected by Exemption 2 of the FOIA as well. Known as "Sensitive Homeland Security Information (SHSI)," this incipient designation subsequently was included within Section 892 of the Homeland Security Act of 2002, 6 U.S.C. § 482, as a basis for its potential use throughout the executive branch. That same year, though, the White House issued a memorandum, in conjunction with the Department of Justice, that addressed both classified information and "sensitive but unclassified" information pertaining to "weapons of mass destruction" such as anthrax-related materials. As the use of the broader designation "SBU" subsequently proliferated widely, and in the continued critical absence of any governmentwide standardization, a presidential directive ultimately was issued late in 2005 that required the Attorney General and the Director of National Intelligence to prepare and submit for presidential approval specific recommendations for "the standardization of SBU procedures" within one year. The fact that this explicit requirement remained unmet more than two years later was one of the subjects addressed at CGS's FOI Day program on March 17, 2008, and it has been the subject of congressional attention as well. Details and up-to-date status information are below.

MAY 27, 2009 UPDATE: Today the White House issued a memorandum to the heads of all executive departments and agencies entitled, "Classified Information and Controlled Unclassified Information," in which President Obama observed that the existing process for implementing a "CUI framework" under the Bush CUI memorandum of May 9, 2008 now "is not expected to be completed until 2013" -- despite the fact that "the persistence of multiple categories of SBU, together with institutional and perceived technological obstacles . . . continue to impede collaboration and the otherwise authorized sharing of SBU information." He therefore concluded that "new measures should be considered to further and expedite agencies' implementation of appropriate frameworks for standardized treatment of SBU information and information sharing." Toward that end, he established, under the joint leadership of the Attorney General and the Secretary of Homeland Security, "an Interagency Task Force on CUI," which among other things will "review current procedures for categorizing and sharing SBU information in order to determine whether such procedures strike the proper balance among the relevant imperatives." This task force is charged with making recommendations on "how the executive branch should proceed" regarding CUI/SBU within ninety days (i.e., by August 25, 2009).

MAY 9, 2008 UPDATE: Today the White House issued a memorandum to the heads of all executive departments and agencies entitled, "Designation and Sharing of Controlled Unclassified Information (CUI)," which establishes "CUI" as a new standard safeguarding label of choice for unclassified information, defines CUI with little limitation, delegates case-by-case CUI designation authority to the heads of all departments and agencies, and requires the National Archives and Records Administration (NARA) to serve as the "Executive Agent" responsible for "overseeing and managing implementation of this CUI Framework."

Transparency Worldwide

The enactment of the Freedom of Information Act in 1966 was a landmark development, but it was not the first of its kind. Such a law was adopted in Sweden two centuries earlier, in 1766, and it continued to apply in Finland when it became an independent nation in 1919. Once enacted and comprehensively amended, though, the FOIA became a model for other nations of the world as they embraced its underlying democratic principles and recognized its strength as an anti-corruption measure. See, e.g., "A Freedom of Information Story: Secrecy Gives Way to Transparency" Access Reports, Vol. 35, No. 14, at 3-6 (July 8, 2009).

Today, more than seventy-five nations of the world have FOIA-like laws, in addition to several international governing bodies, with dozens more nations now poised to join the international transparency community. Details and up-to-date status information are below.

International Right-to-Know Day

In the United States, "Freedom of Information Day" is celebrated each year on March 16, the birthday of James Madison. Since 2002, the international transparency community has likewise celebrated annual "International Right-to-Know Day" on September 28, with similar programs, Web site postings, articles, and activities. In 2007, CGS conducted the first-ever event held to commemorate this day in the United States, which was held at the Washington College of Law and included participants in London, Paris, and Wellington, New Zealand. In 2008, CGS's Second Annual International Right-to-Know Day Celebration was an expanded, day-long program that featured nine speakers who surveyed the state of transparency worldwide, and CGS also prepared the only compilation of all such recognition of International Right-to-Know Day worldwide. In 2009, CGS's Third Annual International Right-to-Know Day Celebration featured participation by the host of the 6th International Conference of Information Commissioners (ICIC) directly from the ICIC proceedings taking place simultaneously in Oslo, Norway, marking the first time that International Right-to-Know Day has been celebrated through such an international exchange. Details and up-to-date status information are below.

Presidential Candidates and Openness in Government

In past presidential election cycles, it was the exception rather than the rule for candidates to be asked about freedom of information and government openness, let alone take formal positions on openness-in-government issues. In the current presidential campaign, however, several candidates have stated positions on the overall subject of transparency versus secrecy, recognizing that it has become a subject of growing concern. It also has been the subject of ongoing efforts by a coalition of non-government organizations to urge presidential candidates to pledge to have "the most transparent Administration in American history." Details and up-to-date status information are below.

Directory Assistance

To assist this Web site's variety of different users, the following specific directory information is provided:

Podcasts

Webcasts

Contact: 202-274-4126

Quote of the Month

"[You should] understand that what the President campaigned on -- toughening our ethics rules, making more transparent our transparency policy -- was something that he was passionate about and is proud of the progress that we've made in ensuring that." White House Press Secretary Robert L. Gibbs (Oct. 28, 2009).


WCL Home


 
Washington College of Law  -  4801 Massachusetts Avenue, NW  -  Washington, DC 20016  -  202-274-4000