Obama wants it both ways on Sunshine Week

James Madison’s birthday will be celebrated Wednesday at the Newseum with the induction of a new class of members into the National Freedom of Information Act Hall of Fame, to be hosted by the First Amendment Center. The main focus of the Newseum event will be Madison’s role as author of the Bill of Rights, especially the First Amendment that guarantees freedom of speech, press, religion, petition and assembly. The gathering is the centerpiece of this week’s Sunshine Week celebration of the public’s right to know how its business is being conducted by those in government — and why the FOIA is crucial to that process.

President Obama promised to make transparency a hallmark of his administration, and one of his first acts as president was signing a much-ballyhooed revision of the Department of Justice’s guidance to federal agencies on administering the FOIA. That law makes government more accountable by making it more transparent, Obama said in signing the new FOIA guidance. Sadly, there’s been more talk than action.

The Senate Judiciary Committee will hold a hearing Tuesday examining the administration’s performance on the FOIA. Much of the discussion will center on a new Associated Press study that found many more people are filing FOIA requests but fewer of them are getting responses as required by law. “People requested information 544,360 times last year under the U.S. Freedom of Information Act from the 35 largest agencies, up nearly 41,000 more than the previous year. … But the government responded to nearly 12,400 fewer requests,” AP reported Monday. The White House claims the data mean little because agencies are making more documents public without first requiring an FOIA request to be submitted. That’s called trying to have it both ways on the issue.

Here are two specific cases in which it’s clear the Obama administration is not abiding by either the letter or the spirit of the FOIA. Judicial Watch filed an FOIA in July 2010 at the Federal Housing Finance Agency seeking documents related to the government’s decision in September 2008 — before Obama was elected — to place Fannie Mae and Freddie Mac into conservatorship. Federal Reserve Chairman Ben Bernanke said at the time that a “catastrophe” would result if the conservatorship action was not taken. The FHFA admitted to Judicial Watch the existence of two key documents explaining why the government acted but refused to make them available in its FOIA response, claiming they are exempted by the “attorney work product” doctrine and the “deliberative process privilege.” Judicial Watch wants the federal judge in the case to review the documents in camera — i.e. in private — and decide whether to release them. The Obama administration should join Judicial Watch in that request.

The second case also involves a Judicial Watch FOIA, this one to the Federal Deposit Insurance Corp. seeking documents concerning the FDIC’s decision to guarantee $306 billion of Citicorp loans and securities and $118 billion from Bank of America. The FDIC provided 101 pages of documents so heavily redacted as to be useless. The judge blasted the agency and ordered it to try again. Obama should direct FDIC to stop playing FOIA games and produce the documents requested by Judicial Watch.