When President Obama – in one of his first official acts – committed his new administration to an "unprecedented" level of transparency, EFF applauded the change in policy. Likewise, when Attorney General Holder, at the President's direction, issued new guidelines liberalizing agency implementation of the Freedom of Information Act (FOIA), we welcomed it as a "particularly promising development." But we also noted that it remained to be seen whether reality would match the rhetoric as the new policy was applied, particularly in the context of pending lawsuits – several of which EFF is pursuing – that challenge Bush-era decisions to withhold requested information.
Unfortunately, the early indicators are not encouraging. Last week, the Justice Department told a federal judge (PDF) in Washington that the FBI – despite the new Holder FOIA guidelines – will not be altering its previous decision to withhold a substantial amount of information concerning its massive Investigative Data Warehouse (IDW), which the Bureau describes as "the FBI’s single largest repository of operational and intelligence information." The database contains hundreds of millions of records and has been characterized as an "uber-Google."
The FBI's refusal in the IDW case to release even one additional word under the Obama administration's highly-touted transparency policy is troubling for several reasons. First, Attorney General Holder expressly directed that the new FOIA guidelines "should be taken into account and applied" in pending lawsuits, and the judge in the IDW case had ordered the Bureau to say "whether [its] position has changed" in light of the new Obama policy. So the FBI is clearly and unequivocally saying that the Holder guidelines don't change a thing.
Second, the reasons the FBI has cited (PDF) for withholding much of the disputed information are precisely the ones that the Justice Department claims are particularly appropriate for agencies to forego in favor of "discretionary releases." Thus, the FBI continues to rely upon the so-called "low-2" exemption to withhold material deemed to be "routine matters of merely internal interest," despite the fact that DOJ's Office of Information Policy (OIP) has recently issued guidance on the new policy directing that where the "low-2" exemption might technically apply, "discretionary release should be the general rule." Even more significantly, the Bureau extensively invokes Exemption 5 to withhold material under the "deliberative process privilege," despite OIP's determination that "[t]here is no doubt that records protected by Exemption 5 hold the greatest promise for increased discretionary release under the Attorney General's Guidelines." It is truly remarkable that, in the face of the stated policy encouraging "discretionary releases" of requested information, the FBI has now seen fit to continue to withhold every single word it withheld prior to the new administration's purported change in direction.
Finally, it is worth noting that the FBI’s announcement of "no change" in the IDW case came just days before the Obama administration's high-profile release of the so-called "torture memos." While the administration deserves praise for that decision, and the American Civil Liberties Union should be thanked for its long and persistent fight to gain the release of that material, the torture memos appear to be a special case. The President himself recognized that "exceptional circumstances surround these memos and require their release" and noted that "the interrogation techniques described in these memos have already been widely reported." So the release of that material was not part of the routine, systemic "presumption of openness" that the President and Attorney General have promised; rather, it was an exceptional decision made at the highest levels of the government in the face of enormous public pressure and in recognition of the fact that most of the details are already known.
The FBI's failure to change course in the IDW case is not the only situation in which EFF has found that the administration's actions are not yet living up to its pro-transparency rhetoric. We have clearly noted our disappointment in finding that the Obama administration has adopted the Bush policy with respect to the state secrets privilege in the context of illegal wiretapping. And the White House has not even bothered to respond to EFF's formal requests for information concerning the use of cookies (PDF) at whitehouse.gov and the policies governing records created on White House BlackBerries and similar devices (PDF). For an administration that promised on Day One that it was "committed to creating an unprecedented level of openness in Government," the early track record leaves a great deal to be desired. It's now time to start delivering on that promise.
