February 17, 2009 | By Marcia Hofmann

Dazed and Confused: Do New Obama Policies Affect Bush Era Cases?

Last week, we told you about our efforts to ensure the White House makes good on its commitment to a more transparent government. Among other things, we've asked courts to postpone or “stay” several of our Freedom of Information Act (FOIA) cases until the Attorney General releases guidelines to implement a new presumption of disclosure in FOIA decisions, as required by the President on his first full day in office. As we said a few days ago:

It seems logical to us that a new regime devoted to “unprecedented” disclosure of information would welcome the opportunity to revisit withholding decisions made under previous, more restrictive policies, but so far we’ve gotten mixed messages from the Justice Department. In one case in which we seek information about the controversial Anti-Counterfeiting Trade Agreement (ACTA), Justice joined us in asking the court to stay proceedings until the new FOIA guidelines are issued and the agency can assess their impact on the disputed documents, and the court agreed. In another case involving the FBI’s massive Investigative Data Warehouse, DOJ [didn't consent to] our motion for a stay, but the court issued an order directing the FBI to inform the court within 60 days “as to whether [its] position has changed” in light of the new policy announced by the President.

Since then, the Justice Department has opposed EFF's stay motion in the FOIA lawsuit for information about the Investigative Data Warehouse. According to the government, it's a bad idea for the court to wait to see whether the guidelines will have any impact on the case "because a stay is unlikely to promote judicial economy and will only serve to delay the conclusion of this litigation." The government explains:

The new FOIA guidelines have not yet issued, and it is not known whether the terms of the guidelines, once they issue, will have any implications for FOIA requests, such as plaintiff’s here, that already have been processed. Moreover, it is not yet known whether the new guidelines, once they issue, will have any bearing on the requests at issue in this particular case.

Interestingly, the government is pushing to postpone other FOIA litigation. In one of the ACLU's FOIA cases for information about the treatment of detainees, the government has asked for a three-month delay so that it can "ensure that the Government's positions are consistent with the president's new Executive Order" on ensuring lawful interrogations of people in U.S. custody during armed conflicts.

So is it important for the government to take a little time to figure out how Obama's new directives affect cases from the Bush era? We think it makes a lot of sense, and wonder why the government seems to be all over the board on this question. As we've said before, if the government isn't yet sure of its positions under new leadership, it should sort out those issues instead of reflexively making old arguments. The President's new policy in favor of disclosure is a sound one that will reverse years of excessive secrecy, and it should be implemented thoughtfully and well.

You can read more about the government's inconsistent approach to FOIA litigation here.


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