In October 2001, the Bush administration took an administrative action that would prove sadly symptomatic of its rule. John Ashcroft, then the attorney general, issued a memorandum warning against casual release of information to the public under the Freedom of Information Act. Such releases, Ashcroft said, should be made “only after full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated.” In case anyone missed the point, Ashcroft added that any bureaucrat who said no to such a request could “be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.” It goes without saying that Ashcroft did not promise any such defense of government employees who released information under the terms of the act.
If cavalier disregard of the law and the public’s right to hold its government accountable were hallmarks of the recently departed administration, we can only hope that President Obama’s response signals a new approach. One of his first presidential acts was to issue a memo to federal agencies on the Freedom of Information Act. It opens by quoting former Supreme Court Justice Louis Brandeis’ pronouncement that sunlight is the “best of disinfectants” and continues by trumpeting the act as “the most prominent expression of a profound national commitment to ensuring an open government.” Where Ashcroft searched for excuses to withhold information, Obama directed all agencies to “adopt a presumption” in favor of releasing it.
That is a transformation of incalculable significance. It alerts agencies that they must use their offices to inform, even when what’s revealed is embarrassing, not to shield or deflect. Moreover, it reverses the disastrous example that the Bush policies set for state and local governments. In Los Angeles and elsewhere, officials used concerns about security as a pretext to retreat from accountability, inhibiting scrutiny of police accused of misconduct and cloaking the salaries of public officials, among other dubious acts of secrecy.
The tension between a free society and a powerful government will never disappear entirely. But Obama’s prompt action on the Freedom of Information Act restores balance to that debate. It should remind officials throughout the land that they must answer first to the public.