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On Thursday, Attorney General Eric Holder issued new Freedom of Information Act guidelines marking a sharp departure from the previous Bush administration. In a statement Holder said, “By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change.” In line with President Obama’s expressed desires to increase government transparency, the new guidelines overturn the so-called “Ashcroft doctrine,” that been in place since October 12, 2001. In the wake of the September 11th attacks, the Bush administration via then-Attorney General John Ashcroft, had imposed stricter standards for the release of government files and information. Government agencies were informed by Ashcroft that any legal justifications for secrecy that he determined to be sound would be upheld in terms of preventing the release of requested documents. Holder’s reversal came during “Sunshine Week,” where journalist organizations actively advocate for more openness in government.

GUEST: Caroline Fredrickson, Director of the ACLU’s Washington Legislative Office

For more information, visit www.aclu.org.

To file a FOIA Request yourself, visit http://www.aclupa.org/takeaction/
actionalerts/constitutionundersiege/fileafoiarequest.htm

Rough Transcript:

Sonali Kolhatkar: First, I want to take a step back. There might be someone who really doesn’t know much about the Freedom of Information Act or FOIA, as it’s sometimes called. How important has FOIA been historically to preserving American democracy?

Caroline Fredrickson: FOIA is a critical tool. For the ACLU in particular, I’ll just use this as an example, using our work, we have been able to pursue any number of issues by getting documents from the government. In particular, the photograph from Abu Grave(SP)?? Information about how people have been treated in detention facilities around the world by the American government. And these were the critical foundation in terms of a lot of the work we’ve done in terms of advocacy and litigation. Without the leverage that we get through the Freedom of Information Act, we would have never got any of these documents out of the Bush Administration.

SK: So the Bush administration under Ashcroft over the past eight years, what specific examples can you give us where they denied FOIA requests, that would have ordinarily been upheld?

CF: Well, we are still fighting for quite a number of documents that been denied under our FOIA requests, including memos about torture, that was ordered by the highest levels of the American government, any number of addition photographs or reports about the treatment of detainees. And these, everybody realizes—particularly your listeners—how important these issues are for our own understanding of ourselves as Americans. What does it mean to be an American? Do we torture people? But also, what is our reputation and our standing around the world? And the Freedom of Information Act is one way that we citizens can insure that our government is sufficiently transparent so that we can hold people accountable. Without this tool, even more abuses would go on than have gone on under the Bush Administration.

SK: Let’s talk about the different views that different presidents have had on FOIA. We spoke about attorney general Ashcroft under Bush creating an atmosphere of secrecy after 9/11, but what about previous presidents? What about Clinton and his predecessors?

CF: Well, Janet Reno actually set the effective standard that Holder had returned to under Clinton. She insured that the presumption was disclosure. That unless there was a significant reason or a need for government secrecy or a statutory reason for a prohibition for releasing certain information, she said if there was none of that then release it. The presumption is, release it. And John Ashcroft went the exact opposite way. He said the presumption was, keep it secret. And that, of course, put the lid on any number of investigations into government misconduct or even just understanding what our government is doing. And in a democracy, this is critical. The sunshine that comes from the Freedom of Information Act is one of the most important tools we can have living in a democracy to make sure that the people’s will is actually represented by the actions of the government.

SK: Caroline, the Associated Press reported that in 1981 under President Ronald Reagan Attorney General William French Smith reversed what had been in place under Jimmy Carter, that again, this presumption of secrecy. Reagan’s Attorney General said, When in doubt withhold. And it seems as if the FOIA has gone back and forth between Republican and Democratic presidents where Republican presidents have tended to at least in the recent past opt for more security; the Democratic presidents have opted for more openness. Would that be fair?

CF: I think that seems to be more now of history. And the irony of it seems to me, I think of FOIA as being a tool of small government in some ways. Holding government accountable to the tasks that it’s assigned. The tasks that we the people gave the government to do. That’s a very, very critical part of what I would think the conservative mindset should be about government, but in fact, the irony here, it’s been the Republicans here who wanted a secretive, unaccountable government and the Democrats who have been more forward leaning and more willing to allow some disinfecting sunshine to come in to examine the workings of government. And I say that from the ACLU, which is a nonpartison organization. There are obviously lots of other areas where things go in the other direction. But in this particular case with FOIA, we have had more trouble with Republican presidents than with Democratic presidents.

SK: So not only is the Attorney General going to take the steps to freeing up the FOIA, if you will, but even the U.S. Senate is taking some action with legislation to strengthen FOIA in the Senate. Can you tell us about these Senate’s efforts?

CF: Yes, and we have worked very closely with the Chairman of the Senate Judiciary Committee on his legislation. And basically, what he aims to do, which is to insure that if Congress means to legislate any statutory exemption to disclosure under FOIA, that is to say, for these reasons, this type of information can’t come out in a FOIA request, if Congress intends to withhold information, it has to be explicit. Because what happened, again, particularly under the Bush Administration, was that they found exemptions where Congress hadn’t necessarily intended them to be or had certainly not stated it clearly where there was a reason to withhold in these areas. And what we need to do is, again, the statutes need to be clear so that whatever the President says, whether it’s a Bush or an Obama or whoever comes after Obama, will be held to the law and not be given a vague mandate that allows much greater discretion for withholding than is intended by Congress.

SK: So this can be a very positive, long term strengthening of FOIA regardless of who’s in office. Is that what you’re saying?

CF: Absolutely, and here’s the thing. I think many people have been very heartened by the election of President Obama, certainly by statements he made during the campaign by certain things he’s done since he’s been elected, but executive orders don’t outlast the length of the executive branch that is in power, necessarily. They are easily reversed by the next President. And what we are looking for is beyond simple executive orders and this new directive by the Attorney General, is we want something that’s going to last through the ages and will certainly outlast any President.

SK: Not only is it organizations like the ACLU, but also of course investigative journalists who’ve been trying to find out information from the Bush government. All of them had been stymied by the more restrictive FOIA, but also there is access– FOIA is something that ordinary citizens, I understand, can use. I mean anyone, any American citizen, can file a FOIA request for information from the government, is that true, and if so, how can people do that?

CF: That’s absolutely true. And for people who want to file a FOIA request, they should go to the ACLU website and type in Freedom of Information Act. We’ll find information about how to file a request or work with the ACLU of Southern California which has a very robust operation, can also be found on the website, and anyone at the ACLU can help people file for FOIA should they want to do so. A lot of people have used this to find out what kind of records the government has on themselves. A very interesting exercise at times to find out what kind of information, the vast amount of information the government has been collecting on law abiding Americans.

SK: And that’s a really good point. Now, in addition to finding our personal data, there is of course a wealth of information that was kept secret under the Bush Administration that I’m sure there’s plenty of interested parties, including the ACLU and other organizations, reporters, etc, who’d like to get access to it. Can the opening up of the FOIA under Obama provide access for FOIA requests to be held up for information that might incriminate the Bush Administration?

CF: Well, you know, there are a number of exemptions under the Freedom of Information Act. As I alluded into Senator Leahy’s bill, would attempt to make sure that exemptions created by Congress are very clearly stated. But there are exemptions on the books, so you need to look at what is a standard under FOIA to determine what could be brought forward. And there are certain interests that we understand, for example. We want to make sure that private information about someone’s personnel records within the government or other such things are not released to people who shouldn’t have access to those types of records. Other information that implicates some strategic military concerns may also be withheld. So I think it really depends on the requests. And people need to look at the exemptions. But to the extent that there is information that incriminates the Bush Administration, we are trying to get that very information ourselves by trying to get the rest of the legal documents produced that deal with the policies of torture and warrant less wire tapping that were developed in particular in the office of legal counsel under the Bush justice department. And those are critical pieces of information that will help us ascertain who put the torture policy in motion and were there laws broken in the process?

SK: The Associated Press, again, has put out a very interesting article where they show all of the various instances in which they filed FOIA requests and actually were able to report on many issues when those requests were fulfilled and other, many more instances where their requests were not fulfilled.

Special Thanks to Celina for transcribing this interview.