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Trump Could Tear Down Obama’s FOIA Secrecy. Here’s Why He Probably Won’t.

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Ethan Barton Managing Editor
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President Donald Trump’s Department of Justice (DOJ) is fighting against Freedom of Information Act (FOIA) lawsuits seeking politically-charged Obama-era documents like those linked to former Secretary of State Hillary Clinton’s scandals.

Trump could demand federal agencies release records to the public, but that would harm the bureaucracy’s ability to retain secrets – something career government officials handling the lawsuits and FOIA requests don’t want, according to transparency experts from nonprofit watchdog groups.

“On any issue … the Trump administration could really … open the window on what’s going on there on all those issues,” Judicial Watch President Tom Fitton told The Daily Caller News Foundation’s Investigative Group (TheDCNF).

“There’s been no change in any of the agencies with our FOIA litigation” since Trump took office, Fitton said.

As prime examples, Fitton pointed to Obama records on Clinton’s use of a home-brew server and private email addresses to conduct official government business and IRS targeting of Tea Party and conservative non-profit applicants during the 2010 and 2012 election campaigns.

Cause of Action Institute President John Vecchione doesn’t expect the Trump administration to change.

A federal agency “never wants to have an outside party hold its feet to the fire. Ever. In any administration,” Vecchione told TheDCNF. “I think what’s going to happen in the FOIA area is that they’re going to keep doing what they’ve been doing. There’s no indication FOIA will change at all.”

Access Reports editor and publisher and 30-year FOIA wars veteran Harry Hammitt noted that “it’s not as simple as saying ‘I don’t like Obama, so I’m going to release his records,’ because there might be benefits for you down the road” from not making the documents public.

“There is something that I refer to as the ‘bureaucratic imperative,’” Hammitt said. “Bureaucrats like to control their records. It’s a natural instinct.”

Releasing documents opens bureaucrats to public scrutiny. Consequently, political shifts are irrelevant to pending FOIA requests and litigation.

“The administration has changed, but the bureaucracy remains the same,” Daniel Schuman, policy director for nonprofit watchdog Demand Progress, told TheDCNF. “It’s not a matter of one party or the other, it’s a matter of how the agencies function. They’re just going to keep doing what they’ve been doing all along.”

American Civil Liberties Union Chief of Staff Michael Macleod-Ball agreed.

“It’s not like you’re going to turn a lightbulb on and off just because there’s a political switch,” Macleod-Ball said. “We tend to cast everything in political terms, but in truth, not everything is.”

Government lawyers – who are often career bureaucrats – argue on behalf of the government and not a political party, said Alex Howard, deputy director for the Sunlight Foundation. His group has created in recent years multiple new digital tools for increasing transparency and accountability in government.

“An administration, even in a change of party, inherits legal positions,” he told TheDCNF. “It’s not uncommon for it to remain consistent.”

Vecchione and Hammitt both said inconsistencies could later come back and “bite” federal agencies.

“The consistency of policy is ultimately probably more important than being vindictive,” Hammitt said.

Macleod-Ball suggested another reason why government lawyers may not back down from FOIA lawsuits: “Maybe there’s some legitimate basis for withholding the information.”

The last transition similarly continued inherited FOIA policies, according to Hammitt.

“Generally, however, succeeding administrations continue with the same kinds of disclosure policies as their predecessors,” he said. “Obama went to bat to defend Bush’s torture memo and other documents of that nature from FOIA disclosure, even though those on the Democratic side would have loved to see them disclosed.”

Vecchione likewise noted that Cause of Action Institute had to sue the Obama administration to turn over George W. Bush-era emails belonging to Secretary of State Colin Powell.

But executive branch secrecy seems to increase over time.

“Obama ramped up secrecy after President Bush,” Fitton told TheDCNF. “They took it sometimes a step further than Bush did on secrecy issues, and Bush didn’t really have a great reputation on adhering to FOIA. Nothing really compares to the Obama administration with secrecy.”

And Schuman and Howard both pointed out that Trump hasn’t discussed government transparency or FOIA.

“When a new administration doesn’t talk about it, that reflects things down the stream,” Howard told TheDCNF. He and Macleod-Ball also noted Trump’s attacks on the press.

Schuman added: “You might even see a little bit of chilling because people are afraid of releasing things that may get them in trouble.”

Trump’s Immigration and Customs Enforcement (ICE), for example, has started withholding “comprehensive” detainer information previously released under FOIA, Syracuse University’s Transactional Records Access Clearinghouse (TRAC) wrote in a recent press release.

“ICE does not claim the withheld information is exempt from disclosure, it simply claims past releases were discretionary and it is no longer willing to make many of these details available to the public,” TRAC said.

Congress, however, can pass laws that force executive branch transparency. The House Committee on Oversight And Government Reform held a hearing Thursday regarding three bills that would increase openness.

“The important thing is that the concept of transparency in government really is a bipartisan thing,” Macleod-Ball told TheDCNF. He and Howard noted that requiring agencies to automatically put records and other information online would be a major step.

“The answer here is to improve automated access,” Macleod-Ball said. “In an ideal world, people should be able to go online and do their search for documents and that should come up.”

Such a move would open more time and money for fights where compliance under FOIA is legitimately questionable, Howard noted.

Meanwhile, Fitton is hopeful Trump will open the executive branch, noting that many political appointee positions haven’t been filled yet.

“I hope the policy changes with political appointees who follow Trump’s policy to drain the swamp,” he told TheDCNF. “Draining the swamp means exposing what’s going on in the swamp.”

Vecchione is thankful for another reason.

“I am very happy we have an independent judiciary” ruling on FOIA litigation, he said.

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