Sunshine Week and bloggers' role in FOIA research

This week is Sunshine Week, an annual event created to draw attention to government transparency issues. In today's Washington Post, ombudsman Andrew Alexander criticizes his paper for not participating in Sunshine Week, and also for failing to take a more prominent role in the transparency debate:

"Post reporters routinely file Freedom of Information Act requests to dislodge public records. Editorials warn about the dangers of government secrecy. And the newspaper is willing to sue government agencies to force disclosure of documents. It cares about the public's right to know.

So you would think that with its stature, here in the nation's capital, The Post would be the leader in fighting for transparency. It isn't.

Other newspapers are more assertive on their news pages in championing the cause. Pioneering Web sites are much better at giving readers access to government data. And some open-government advocates feel The Post hasn't done enough to curb Washington's corrosive culture of anonymity."

I agree with Alexander that our top newspapers should do more in the transparency/FOIA department. But even if they don't, transparency groups and blogs can help fill the void - and they already have been. Whereas much of the debate over the rise of blogs centers around whether they can or will replace newspapers, I have always envisioned blogs playing a complimentary role: allowing more voices into the debate, providing citizens with a check on the mainstream media, and perhaps most importantly, filling gaps in niche areas the media fails to cover (for political reasons, or just for economic and profit-motive reasons).

FOIA is a great example of an area where blogs can excel in this gap-filling role. Getting controversial documents released under FOIA can be a very involved, complicated process, often requiring extensive research on very a narrow facet of some policy issue. In contrast, good newspaper articles usually provide a broader picture of a given policy issue, because the goal is to give readers a better general understanding of the issue, and not the specific details of a single memo or document.

Since I got the Rumsfeld memo in 2006, I've been working on getting a major pre-Iraq war planning document released under FOIA from the Defense and State departments - the presentation of arguments for invading Iraq that the neocons gave to Colin Powell prior to his UN presentation, telling him to choose from the various rationales "like a Chinese menu" - and I have reason to believe it may be released in the near future. I've also been applying for FOIA's "representative of the news media" fee waiver, which lets media outlets like the Post get FOIA documents without paying the processing fees bloggers currently have to pay. In 2007, Congress amended FOIA to make it easier for bloggers and citizen journalists to apply for the waiver, but to my knowledge, no one has gotten it yet.

In the last few years, a lot of bloggers and other citizen journalists have obtained important documents under FOIA (most recently, TPM got an index of reports prepared by the DoD's think tank). In addition to the obvious goal of saving money in FOIA processing fees, my motivation for fighting for the fee waiver is to bring attention to the work bloggers and other citizen journalists have done in this area. If you know of a good example I may not have heard about (no need to tell me about the category leader, The Memory Hole), please email me with a link at outragedmoderates [at] gmail [dot] com.

DOJ releases Bush-era memos on war on terror

It's hard to even know where to start with the previously-secret war on terror memos released by the DOJ yesterday. The memos were released in response to a massive ongoing Freedom of Information Act lawsuit the ACLU brought seeking the release of information about the capture and treament of terror suspects. From my perspective, the most important thing they show us is that the Obama administration appears to be very serious about living up to his campaign promise to improve government transparency - and they may signal a new era in FOIA.

I'm busy this week, and haven't had a chance to read through them yet, so I will defer to some well-informed writers who have. The Post's Dan Froomkin, Salon's Glenn Greenwald, and Yale law professor Jack Balkin have good overviews of the memos (Balkin's has a good overview of the recent memos from the Bush DOJ distancing itself from the earlier ones). From reading the various commentary, the most absurd argument in the memos might be John Yoo's claim that the Foreign Intelligence Surveillance Act (FISA) doesn't apply to national security surveillance, because it did not include a "clear statement" showing that was its intent. As GW law professor Orin Kerr explains, not only was the undeniable purpose of the law to regulate national security surveillance, but federal law actually says that it is the exclusive way such spying can be conducted.

Want to hear something depressing? Yoo is currently employed as a law school professor: he's a visiting professor at Chapman University School of Law in California, and that state's taxpayers should know that he's still on the Berkeley payroll.

Office of Legal Counsel Memoranda [usdoj.gov]