On January 20, workers will disinfect every inch of the White House complex to prepare it for the new administration. While they’re doing that, President-elect Joe Biden could do some sanitizing of his own by signing a memorandum to promote government transparency, opening the windows of the executive branch to let some fresh air and sunshine in after four very cloudy years.
The presidential memo is one of several key steps that transparency advocates want to see from the new administration. Some of those steps, like an overhaul of the Freedom of Information Act and more funding for agency records offices, would require action from Congress. But there are other steps, like appointing someone within the White House to oversee government transparency efforts, that Biden can take on his own.
Government transparency is rarely a top priority, and that will be especially true as the administration confronts a pandemic that has raged out of control, crippling whole sectors of the economy. Advocates say that ensuring people can see what their government is doing, and how, will be key to rebuilding a stronger democracy.
But “it’s not shiny, and it’s tough for me to imagine that a new administration would prioritize these kinds of hard problems,” said Daniel Schuman, policy director for Demand Progress. “On the other hand, the Biden people may also realize that one of the few things that helped to provide oversight and accountability of the Trump administration was that FOIA still kind of worked, even if it’s slow, and proactive disclosure still worked, even if it’s spotty.”
Biden’s transition team did not respond to a list of questions about a possible presidential memo, its general open-government policies, how it will handle investigations involving leaks to journalists, or whether it plans to appoint a transparency chief.
The Freedom of Information Act, or FOIA, will turn 55 next year. Signed in 1966, it requires federal agencies to hand over their records to anyone who asks, with nine exemptions for things like classified information, certain law-enforcement records, personnel records, and trade secrets. FOIA is a cornerstone of government transparency, but it’s also been strained to the point of breaking.
For years now, agency FOIA offices have been flooded with far more requests than they can process, leading to huge backlogs and long wait times. Requests that are supposed to take 20 to 30 business days can now take months or years to complete. In the face of those kinds of delays, some journalists, especially, have abandoned FOIA as a transparency tool altogether. The law has also been politicized, especially under the Trump administration, with political appointees in some agencies given more say over what records to release.
That’s all in addition to the longstanding problem of agencies straining to use any possible exemptions to avoid releasing records, even if those records aren’t particularly embarrassing. In short: The very concept of government transparency is ripe for reform under the Biden administration.
The first thing Biden could do is also the simplest: sign a presidential memorandum that lets executive branch agencies know that FOIA will be a priority in his administration and that they should have a “presumption of disclosure.” President Barack Obama did just that on his second day in office, with a memo that directed federal agencies to “adopt a presumption in favor of disclosure ... to usher in a new era of open government.”
“A lot of transparency people rightfully criticized the Obama administration,” said Michael Morisy, executive director of the public records-focused news site and request platform MuckRock. “But I think one thing we don’t talk about enough is how that [memo] set the tone for FOIA.”
Like Obama’s memo, Biden’s could be followed by guidance from the Justice Department’s Office of Information Policy and the Office of Management and Budget that fleshes out how agencies handle transparency. It could also promote what’s called “proactive disclosure” in which agencies release information before anyone asks for it.
A coalition of 30 advocacy groups has released a series of recommendations called Accountability 2021 that lays out several categories of records for proactive disclosure. They include agency organizational charts and contact information, lists of agency datasets, calendars for senior agency officials, information about major contractors, unclassified reports and testimony to Congress, information on classified inspector general reports—and, of course, the White House visitor logs, which Trump famously locked down.
It’s hard to believe that many of those records aren’t public already. For example, Congress requires agencies to write countless reports that get filed with House and Senate committees. Most are never made public, and agencies often won’t release them without going through the months-long FOIA process first.
“FOIA is fine,” Schuman said. “But FOIA is slow, and it’s painful, and it can be expensive.” Why not save everyone the time and trouble?
Another relatively easy step atop transparency advocates’ wish list: Appoint a transparency or ethics chief in the White House. This person would coordinate the executive branch’s transparency efforts across agencies, making sure that they implement Biden’s policies and work together.
Experts who spoke with The New Republic said it’s not yet clear whom Biden will tap to head his administration’s transparency efforts. The task may go to a single person, as advocates hope, or it may be one job among many for someone in the administration—the Jared Kushner approach, if you will. The administration is still filling out its cabinet-level positions, so announcements on these more niche roles may be yet to come.
“It really depends on, do they pick someone who cares, or do they pick someone who doesn’t,” Schuman said. “And do they have a person who’s responsible for this, or do they roll it into a broader portfolio and then kind of ignore it? That is a question that remains to be answered.”
As cabinet-level positions go, there’s one Biden hasn’t named yet that could have a big impact on his administration’s approach to transparency: attorney general.
The number of FOIA requests rose dramatically during the Trump administration, and along with it rose the number of FOIA lawsuits. That’s resulted in some bad case law as federal judges defer to agencies’ most creative interpretations of the law, according to Kel McClanahan, executive director of the nonprofit law firm National Security Counselors. For the most part, it’s up to the Department of Justice to defend those cases when they go to court.
From McClanahan’s perspective, one of the biggest problems with FOIA under Trump was that the DOJ took the leash off of agencies’ worst impulses. “The reason that DOJ lawyers pushed back against bad FOIA practices in previous administrations, to the extent that they did, was because they didn’t believe that they would be able to win would they go to court,” McClanahan said. “When the government still wins on insane stuff, all of a sudden the DOJ lawyers have no real incentive to push back much.”
To fix that, McClanahan said, it will take more than a presidential memo or a transparency czar. The attorney general needs to tell agency heads that DOJ won’t defend certain positions—like withholding records under a broad interpretation of an exemption—even if the argument might skate by in court. At the same time, a pro-transparency attorney general could direct DOJ to review FOIA cases it’s already defending and reevaluate which ones it really wants to fight.
“There are a lot of cases, including some of our own, where DOJ is defending indefensible positions,” said Freddy Martinez, a policy analyst at Open the Government, a transparency advocacy group. “It’s very clear that an agency didn’t search records, or they’re very clearly fighting for an exemption that doesn’t apply. So they could just settle those cases.”
This one will take Congress, too: At the end of the day, the biggest problem with FOIA is that most agencies’ FOIA offices don’t have enough people or money to do their job. And as the number of requests has grown over the years, many of those offices’ budgets and staff haven’t kept pace. That’s why releasing a single report can take over a year. The situation is so bad that, in many cases, a lawsuit is the only way to prompt an agency to start releasing records in a timely manner. That, in turn, can slow the system down even further.
There are things the Biden team can do on its own to help, like working with agency procurement and IT offices to make sure that FOIA offices have the technology to make their jobs easier. (Anyone who has ever sent a FOIA request for a spreadsheet and gotten back a grainy scan of the printed document or feverishly hunted for a CD-ROM drive so that they could open a FOIA response will appreciate this kind of reform.) Biden could also work with agencies and Congress to create budget line items for FOIA—something that doesn’t currently exist.
“FOIA budgets are not a high priority for agencies,” Martinez said. “So directing agencies to create dedicated budgets for FOIA processing would be huge. Because many agencies don’t ever give their FOIA teams more money.”
Ultimately, though, Congress will have to hand the money over. Many of the experts who spoke with The New Republic said the Biden administration should throw its weight behind more funding and even legislation to overhaul the law. If it did, it would be taking another cue from Obama, who signed the bipartisan FOIA Improvement Act into law during his last months in office.
Jason Leopold, a senior investigative reporter at BuzzFeed news and the unofficial dean of FOIA journalists, lays many of the problems with the law at Congress’ door. It’s up to lawmakers to give agencies more FOIA staff and to put pressure on agencies to work through their enormous backlogs of requests. “We need something more than just a statement,” he said. “We need something bigger than that.”