Advocacy

Transparency Initiatives Moving Forward: A New Committee Tackles FOIA Reform While Congress Takes on Presidential Records

Lee White, November 2014

In December 2013, the United States issued its second Open Government National Action Plan (NAP), which sets forth several specific initiatives the Obama administration hopes to undertake in the next two years. The report acknowledged what many in the historical community have long known—that the Freedom of Information Act (FOIA), passed in 1966, desperately needs reform and modernization.

The newly formed FOIA Federal Advisory Committee will make specific recommendations to address this need. The committee was given a broad mandate to review government-wide FOIA practices. The end product will be recommendations for legislative and/or regulatory reforms to address problem areas identified by the committee.

David Ferriero, archivist of the United States, appointed the 20 members of the committee in May 2014. There are 10 members from within government and 10 nongovernmental members who have considerable FOIA expertise and who were selected to achieve a balanced representation. Committee members are appointed to a two-year term. Miriam Nisbet, director of the Office of Government Information Services (OGIS), has been named to chair the committee. OGIS was created five years ago within the National Archives to support the role of FOIA ombudsman across the federal government.

I had the honor of being appointed to the committee, to represent the interests of the National Coalition of History’s many constituencies. While historians, archivists, political scientists, scholars, students, and other stakeholders have different views of FOIA, we likely all agree that the administration of the FOIA needs to be improved and modernized. That said, while there are universally acknowledged difficulties with FOIA, our community has some specific concerns.

Efforts to fix the federal government’s broken classification and declassification systems are now moving on parallel tracks in Congress and within the administration. One objective of those efforts is to make those systems more FOIA-friendly.

I plan to use the forum of the advisory committee to raise and give visibility to concerns that the Public Interest Declassification Board (PIDB) identified in its two reports to the president: “Improving Declassification” (2008) and “Transforming the Security Classification System” (2012).

The PIDB made two recommendations of particular interest to historians. The first concerns the prioritization of the preservation and processing of “historically significant records.” The PIDB suggested that these records “should be identified and set aside as early as possible after their creation to ensure their preservation, long-term access, and availability to agency policymakers and historians.” The PIDB further recommended that each agency should have an in-house history staff to assist agency records officers and declassifiers in the prioritization of records.

The PIDB also recommended that all departments and agencies that deal with national security and that engage in significant classification activity establish historical advisory boards and hire an appropriate number of historians to expedite declassification and public release.

The FOIA Federal Advisory Committee held its inaugural meeting on June 24, 2014, to discuss improvements to FOIA administration, develop consensus and recommendations for improving FOIA administration and proactive disclosures, and solicit public comments. Subsequent meetings will be devoted to prioritizing the FOIA issues on which the committee will focus.

The committee will meet up to four times per year and may call additional meetings as necessary. Meetings will be open to the public. The activities of the committee will be reported at ogis.archives.gov/foia-advisory-committee.htm. FOIA committee staff will post the meeting materials the members receive at each session, as well as the agenda and the transcript of the previous meeting.

Presidential Records Reform Legislation

In September, the Presidential and Federal Records Act Amendment of 2014 (HR 1233), the latest iteration of Presidential Records Act (PRA) reform, passed the Senate unanimously. A similar version passed the House unanimously in January 2014. However, before the bill goes to President Obama for his signature, the House and Senate must reconcile the small differences between the two versions through a conference committee, unless the House simply passes the revised Senate version. With Congress in recess until after the November elections, it remains to be seen whether the House and the Senate will be able to finish work on the measure this session.

According to Politico, “Transparency-related measures like the presidential records bill stand a better-than-average chance of passing this year.” However, the Obama administration has not publicly supported HR1233 and missed opportunities to issue a formal statement of administration policy before the bill was approved in the House or the Senate.

The National Coalition for History has been a leading advocate for the enactment of PRA reform legislation since the issuance of President George W. Bush’s 2001 Executive Order 13233, which restricted public access to presidential records. Shortly after it was issued, NCH was a plaintiff with other historical and archival groups in a federal lawsuit that sought to have President Bush’s executive order declared invalid.

Recently, NCH contacted the chair and ranking committee member of the Senate Homeland Security and Governmental Affairs Committee (Senator Tom Carper [D-DE] and Senator Tom Coburn [R-OK], respectively), urging them to move the bill forward.

The Presidential Records Act was passed in 1978; the Reagan administration was the first it applied to. However, the law was silent on how claims of presidential privilege governing access to records should be applied. Failure to set out such a methodology left it to each president to interpret how presidential privilege claims by former presidents should be handled. HR 1233 is designed to clarify the use of executive privilege and codify how it should be used.

Before leaving office in January 1989, President Reagan issued the first executive order (EO 12667) providing an interpretation of how the law should be administered with regard to claims of executive privilege. It remained in effect until President Bush issued his 2001 order, which broadened claims of executive privilege for current and former presidents and their heirs. On his first day in office, President Obama revoked the Bush executive order and reinstituted the procedures that had applied during the George H. W. Bush and Bill Clinton administrations.

Lee White is the executive director of the National Coalition for History.

© 2014 The National Coalition for History.