donald-trump-1An interesting discussion about the future of the Freedom of Information Act under the Trump Administration began this morning on [email protected], the listserv for FOIA practitioners, journalists and other professionals.

The first post:

Short of a major elector defection… we should probably start figuring out how to deal with the next administration (and Congress).

  1. What can we expect to happen over the next 4 years (relevant to list)?
  2. What good effects could we get from this, short or long term?
  3. What can we do to make those happen?

The first response: “Same $hit, different adminisration.”

The second response:

(That’s) right.

The U.S. elected a president in 2008, and re-elected him in 2012, who promised to conduct the most transparent administration in history. The requester community took a wait-and-see attitude, and we were disappointed when the metrics demonstrated that many things about FOIA got worse, not better.

We discovered in 2015, after trying to obtain Secretary Clinton’s work-related emails under FOIA since at least 2009, that she was managing a private email server in her basement to conduct all her official government business, effectively removing all her communications from FOIA until the issue erupted as a political scandal. Clinton’s senior advisers at the State Department testified that they never searched their email accounts for records responsive to FOIA requests, even though such requests were logged.

We saw records redacted for political considerations, despite promises not to do so. Other Cabinet officials under Obama were identified using “secret,” non-public email addresses to conduct government business, and it was disputed whether those accounts were searched in response to FOIA requests.

After a period when few news organizations litigated FOIA disputes, we are seeing appreciable increases on that front. AP alone has filed three such lawsuits recently. The New York Times continues to be aggressive.

Will Trump’s administration inherently be better or worse on FOIA? It might not matter. News coverage of government’s transparency failures was very popular. We’re already so twice-shy from being burned under the Obama administration that the community is more skeptical and more aggressive about enforcing our rights and pursuing our options under FOIA. That’s not a bad thing.

But there are several distinguishing elements in the current situation. For example,

  • This time around, the Vice President-Elect in his previous congressional career built a reputation as a leader in the (stalled to date) campaign to pass a federal shield law. While his Free Flow of Information Act was hardly perfect because it allowed the government to demand journalists to reveal their confidential sources in the name of national security—about the only grounds that federal investigators would be likely to cite—it may have been a sincere expression of respect for the independence of the press. But that sincerity will be tested now that he is no longer a critic of the executive branch but one of its most prominent spokesmen.
  • Speaking of national security as a warrant for pursuing both journalists who reveal classified information and whistleblowers who leak it, the Obama Administration’s record of militancy has been unprecedented, and will no doubt serve as a ready precedent for a repopulated Justice Department.
  • As for the first Trump appointee to the Supreme Court, it is unlikely that he or she will be as protective of FOIA or free press issues as Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, who is President Obama’s nominee to fill the Supreme Court vacancy left with the death of Justice Antonin Scalia earlier this year.
  • Finally, this has been the first presidential election campaign conducted under Wikileaks pressure, and that pressure was targeted only at the Clinton operation, in contrast with the many questions about Trump left as a cipher. If for whatever reason a Wikileaks-like sequence of hacked emails, for example, starts visiting the Trump Administration—especially in a way that makes Trump himself look less than competent or effective as an executive—the consequences for both the press and suspected whistleblowers could be severe.