Thoughts on FOIA Executive Order [NOTE: Corrected to "Presidential Memorandum"]
Now that I've had some time to digest President Obama's Executive Order on the FOIA, I have some thoughts on it.
The biggest implication, I believe, is the signal it sends. This Executive Order states that there is a presumption of disclosure of government records and it was sent on the first day of the new administration. It tells the Attorney General to issue guidelines consistent with the Executive Order. I believe it is an instruction to the Department of Justice and all agencies that past practices need to be revisited and the withholding for the sake of withholding days are past.
I think the Reno memorandum of October 1993 will be the place the Department of Justice will start in making the FOIA more open. However, I hope that Justice doesn't stop there and listens to open government groups that have circulated ideas about improving the FOIA.
My advice to the Department of Justice is to be bold and rethink underlying assumptions about why certain records should not be released pursuant to the FOIA. As an example, does the release of pre-decisional documents always chill the decisional process of the government? I don't think it is always true and the use of exemption 5 on every pre-decisional document should be rethought.
On the whole, I think yesterday was a great day for the FOIA, but there is much work to do in the months ahead.
You can read the complete text of the memorandum at this permalink.
