PETER O. ZIERLEIN*
“For a long time there’s been too much secrecy in this city,” President Obama said on his first day in office as he announced new policies favoring openness in government. Ever since, reporters and others in the Freedom of Information Act (FOIA) business have been talking about their priorities for release of documents they have been seeking, in some cases for years. One group is compiling a list of the Ten Most Wanted Government Documents, and there are lots of suggestions.
“More important than anything, I want Treasury to tell us what they did with the bailout money,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. Bloomberg News filed a FOIA suit on November 7 seeking information from the Federal Reserve about the recipients of the $700 billion Troubled Assets Relief Program rushed into law last fall and about the “troubled assets” the government accepted as collateral. The request was denied on December 8, six weeks before Obama took office, according to Bloomberg’s Mark Pittman, on the grounds that the 231 pages of documents should be withheld because they are internal memos and also contain information about trade secrets. That decision should be reversed by Treasury Secretary Timothy Geithner’s team, says Dalglish.
Others have different priorities. For Jameel Jaffer, director of the ACLU’s National Security Project, number one is the secret memos from the Justice Department’s Office of Legal Counsel (OLC), which permitted torture and warrantless surveillance of Americans in the name of national security. The ACLU had filed three FOIA lawsuits seeking to compel the Bush administration to release dozens of legal memos related to rendition, abusive interrogation and detention and other abuses of civil liberties. On February 17 the government and the ACLU agreed to a thirty-day extension of the date for a hearing on an ACLU request that the Obama administration end the litigation and release the records.
Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, has the same priority: “These are documents of profound, sometimes decisive policy significance that have often been withheld even from Congress,” he said. These documents are “immediately eligible for the kind of discretionary release that the Obama memoranda advocated.”
The investigative journalism project ProPublica has set up propublica.org/special/missing-memos, which lists and describes the OLC memos that are still secret.
White House e-mail is first on Thomas Blanton’s list–he is director of the National Security Archive at George Washington University, the major repository of national security documents released over the years under the FOIA. The archive has been litigating over White House e-mail since 2007. In a court hearing on the missing e-mails, White House attorneys admitted “finding” 14 million e-mails that had been reported destroyed. This is another area where Obama could simply stop defending the Bush administration lawsuit and instruct the National Archives to organize and release the e-mails. But on February 20 the Justice Department refused to do that and continued to defend the Bush position in court.
Secret Service logs of visitors to the White House are at the top of Anne Weismann’s list. Weismann is chief counsel of Citizens for Responsibility and Ethics in Washington. CREW won a FOIA lawsuit on January 9, when US District Judge Royce Lamberth, in Washington, DC, rejected the Bush administration argument that the public has no right to know the names of people who visited the White House, no matter what the purpose. The Secret Service had refused to process CREW’s FOIA request on orders from Vice President Cheney, who was trying to keep secret the names of fundamentalist Christian leaders who visited him. The Bush White House had announced that it was appealing the decision, but the Obama administration could simply drop the appeal and release the records.
FEMA’s Hurricane Katrina records are first on Rick Blum’s list. Blum is coordinator of the Sunshine in Government Initiative, a coalition of media groups ranging from the Associated Press to the National Association of Broadcasters. He points to the FOIA request filed in 2005 by Mark Schleifstein of the New Orleans Times-Picayune, which won two Pulitzer Prizes, for public service and news reporting, in 2006 for Katrina coverage. Schleifstein had requested documents generated by FEMA’s rapid needs assessment teams, which determine the needs of stricken communities for food, water, housing and medical assistance. “I sought to better understand the causes of FEMA’s historically botched delivery of disaster recovery aid,” he wrote. But the only response he has received is an annual apology from FEMA accompanied by an inquiry about whether he still wants the records. “I replied ‘YES,'” he wrote in the Times-Picayune at the end of January.
Other contenders for spots on the most-wanted list of secret documents include Justice Department records on the politically motivated firings of US Attorneys; an official list of detainees at Guantánamo; EPA data on toxins in drinking water and the environment; Nuclear Regulatory Commission information on nuclear site safety, taken off the web by the Bush administration after 9/11; the transcript of the interview Dick Cheney gave the FBI as part of its investigation of the leak of CIA officer Valerie Plame’s name to the media; and, of course, information about the secretive Cheney energy task force, which has been litigated over a great deal during the past seven years.
Every one of these items includes an imperative for Obama going forward: FEMA should release not just records about Katrina but about its current disaster preparations and policies; the Justice Department should reveal not only its past misdeeds but also its present activities and policies; the Obama White House needs to archive not only Bush-era e-mails but its own as well.
The survey to identify the Ten Most Wanted Government Documents is run by OpenTheGovernment.org. The group’s director, Patrice McDermott, says the results will be released in mid-March during Sunshine Week, an annual event sponsored by the American Society of Newspaper Editors that highlights the public’s right to know what its government is doing. By that time, many of the most coveted documents may already have been released. After all, Obama said on his first day in office that “starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.”