Obama’s Fight in Shadows Exposed for Sunshine Week

(CN) - Despite promising the "most transparent administration in history," President Barack Obama's administration "strongly" opposed a bill meant to strengthen his own administration's order promoting openness in government, a memo obtained by a press-advocacy group reveals.

On Wednesday, the Freedom of the Press Foundation released Department of Justice talking points describing why the administration fought the passage of the FOIA Oversight and Implementation Act of 2014.

The reform bill stemmed from a memo Eric Holder issued as attorney general in early 2009, instructing all executive-department and agency heads to make a "presumption of openness" when fielding Freedom of Information Act requests.

One way that the 2014 bill would have put some meat on the bones of that memo included a narrowed definition of "foreseeable harm" that could be used to justify stonewalling documents.

As revealed by the newly disclosed talking points, however, the Justice Department believed this tweak to be "particularly pernicious" because it forced FOIA officers to articulate "specific identifiable harm to an interest protected by an exemption."

"This is a much higher threshold to meet and would put a vast array of information at risk of disclosure," according to the memo, which Vice News first reported.

Without its federal litigation in San Francisco, the Freedom of the Press Foundation would not have learned about this secret lobbying effort against the bill, executive director Trevor Timm noted in a phone interview.

Timm called the administration's strenuous opposition to its own stated policies "the most shocking part of what this lawsuit revealed."

"I think a lot of people have been cynical for a long time about the Obama administration's stance on FOIA," he said. "On the one hand, claiming in public that they are for the presumption of openness, and on the other hand, in court and elsewhere, played the other side."

Those courts antics have been on display most clearly in the Obama administration's withholding of documents about U.S. drone warfare from The New York Times.

Timm said the department memo his foundation won "represents a new low" to that trend because it shows the administration "essentially lobbying against codifying their own internal policy, or what they claim to be their own internal policy."

Timm marveled at another section of the memo in which the Justice Department bemoaned a provision that "would require judges to determine, on a document-by-document basis, whether disclosure of a record protected by an exemption would cause 'identifiable harm,'" according to the memo.

"That is basically what judges are supposed to do in FOIA cases," he said.

Legal precedent nearly prevented a Manhattan federal judge from performing independent review three years ago, in New York Times v. United States.

Initially dismissing the case, U.S. District Judge Colleen McMahon blamed "contradictory constraints and rules" and a "thicket of laws and precedents" for preventing her from providing transparency on U.S. drone policy. The frustrated jurist made headlines for comparing those bureaucratic hurdles to Joseph Heller's "Catch-22" and Lewis Carroll's "Alice in Wonderland."

Though the Second Circuit untied her hands somewhat on appeal, the FOIA-reform bill that that the Obama administration helped kill two years ago would have provided judges with greater discretion.

For Timm, the administration's preference of tackling records-access through internal policy rather than statutory law is shortsighted.

"I think it's particularly sad that the Obama administration is taking this position," he said. "They're going to be out of office in less than a year, and any improvement that they may have made to FOIA law ... can be rolled back.

The revelation falls days before Sunshine Week, an annual initiative by the Reporters Committee for Freedom of the Press and the American Society of News Editors to promote transparency in government.

In 2003, the initiative first kicked off in the "Sunshine State" of Florida, and it now boasts a nationwide reach on the cusp of its 13th anniversary next week between March 13 and 19.

The Radio Television Digital News Association did not miss the irony of the timing.

"Now, on the eve of Sunshine Week and an appeal to the U.S. Senate by RTDNA and a coalition of media groups in the Sunshine in Government Initiative to support FOIA reform, comes evidence the administration worked aggressively in 2014 to kill similar improvement measures," its executive director Mike Cavender said in a statement .

The Justice Department has not returned a request for comment.

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