March 13: This post has been corrected.
Dan Metcalfe directed the U.S. Department of Justice's Office of Information Policy for more than 25 years. He founded the office in 1981, under the Reagan administration, and retired in 2007. During that time he drafted two seminal memos on FOIA. One during the Clinton years instructed government agencies to be more open and another in 2001 -- known as the "Ashcroft memorandum" -- that reversed that decision.
He now teaches law at American University and directs the Collaboration on Government Secrecy, the only academic center of its type at a law school.
In the interview below, Metcalfe told us how companies pushed President Bush to exempt their "critical infrastructure information" from FOIA, and how the much-maligned Ashcroft memo could have been worse.
Metcalfe also shared his thoughts on transparency in the Obama administration.
Why did you leave the Justice Department?
My wife used to say that she thought I would die at my desk...I knew I was eligible to retire and the way that I've expressed it is that I had difficulty looking my wife and my kids in the eyes and saying that I worked for George Bush and Alberto Gonzales when I no longer had to. They understood the George Bush part very well. They didn't really get the Gonzales part, but then about 20 minutes after I retired in January '07, Gonzales started self-destructing. Then they understood.
I always knew I would be interested in teaching. I'd done so much of that type of work over the years.
What are your thoughts so far of President Obama's transparency promise?
It's more than just a promise. It is so remarkable what he did on Jan. 20 and 21...He adverted to transparency by talking about doing business in the sunlight in his inaugural address. That is a first, an absolute first. Then, what I call the Day 1 issuances -- the twin memoranda -- one on the broader issue of transparency and open government and the second on the subject of the Freedom of Information Act that was directed to the Attorney General...There's never been a president who has paid attention to the FOIA in anything even approaching that way...What he did is just transformational. There's no other word for it.
Now the question is: What next?
What is next?
As to the content of the [upcoming] Holder, I think that it certainly should be no less favorable to FOIA requesters and to disclosure than the Reno (FOIA) memorandum, which established the foreseeable harm standard.
What I've been suggesting is...a "readily foreseeable harm" standard...The idea of a "foreseeable harm" standard is it required agency officials to consider whether they could foresee any harm even though something fell within a FOIA exemption before they would apply the exemption. Well, "readily foreseeable harm" would be something that would indicate to FOIA officers that they shouldn't spend all day going about that process. In other words, if something doesn't occur to them readily as being harmful upon disclosure, then regardless of the fact that it falls within an exemption technically, that shouldn't make any difference. It should be disclosed.
There are other things that can be in an attorney general (FOIA) memorandum. ...I would think that the Holder memorandum should contain additional features...Certainly backlog reduction. Certainly removal of procedural barriers. Certainly updating of agency regulations.
What probably matters as much as or more than anything else, even more than just the content of the Holder memorandum, is how aggressively, how effectively, it is implemented throughout the executive branch. You have now 93 federal agencies subject to the Act because I assume that with Cheney's departure the Office of Administration there is now back on line with the FOIA. Cheney pulled it out of the FOIA realm due to the e-mail controversy during the Bush administration. And in those 93 federal agencies, there are the equivalent of more than 5,000 full-time employees devoted to the FOIA...Those are the people who need to get the message -- loud and clear.
What we used to say in 1993 is that we needed to turn that battleship around... Now they need to not just turn that battleship around and point it 180 degrees in the opposite direction, they need to make it jump up and down out of the water a few times.
When Bush 43 came in and Ashcroft came in as AG, I knew that Ashcroft personally was not so much against disclosure as he was a big believer in privacy protection. So when I started drafting the Ashcroft (FOIA) memorandum, which I did during transition time to have it ready...I tried as my opening bid to have a memorandum that truly was not nearly, not as conservative as the William French Smith one was from 1981. I even mentioned discretionary disclosure, believe it or not. They signed what I prepared with the exception that they added an additional paragraph that sort of sticks out like a sore thumb from the White House regarding privilege. I knew it wasn't nearly as bad as it could have been....
Also, I did not go out and implement the memorandum anywhere near the way we did for Janet Reno. Consequently, it didn't filter down and have nearly as much impact as it otherwise would have.
Now that things are moving in the opposite direction, do you have any regrets about not being at Justice?
The answer in my case is a very resounding no. I made a firm decision that I was interested in joining academia and I have enjoyed that, frankly, so much since arriving at American University law school that I wouldn't for a moment trade that for anything...It's an exciting time to be able to be on the outside pushing the administration from an academic, public interest standpoint.
Do agencies have the resources to effectively carry out FOIA?
Unquestionably, agencies have the resources they need to implement the Holder memorandum with respect to greater disclosure, with respect to discretionary disclosure, under a foreseeable harm-type standard...Going beyond implementation of the substantive disclosure standard and releasing more information by withholding less under the FOIA, that's where you do get into areas that would require additional resources.
They were far from it at first. During the Bush administration, both Congress and the executive branch were amazingly tone-deaf to the damage that the near-absolute secrecy over "bailout" expenditures caused. Lately, belatedly, this has improved, but those who are most knowledgeable on the subject argue persuasively that there remains a long way to go.
What do you think people need to know about how the government is spending this money?
In a word, nearly everything. I would make exception only for financial information that is of such extreme proprietary sensitivity that its disclosure would harm the program. In other words, even information of some (but relatively low-grade) business sensitivity should be made public as the "price of doing business" with the government in such an extraordinary way. To do anything less is to cede to private interests more than is warranted under the circumstances.
Do you think records closed by the Bush administration will be reopened?
Yes, a lot. Not all, though. I think that in fairness, there are some types of information, that although readily releasable under the FOIA or even affirmatively disclosable as a matter of administrative discretion on agency Web sites prior to 9/11, when viewed through a post-9/11 lens do qualify for protection under Exemption 2, for example... I think that was certainly the case right after 9/11. The underlying concern that animated that has faded with the passage of time, so I think there is less newly withholdable information now in 2009 than there was in fall 2001 and in 2002.
I have enough understanding and enough knowledge of what's inside the government to know that it should not just be a clean sweep that everything that the Bush administration initially withheld should now be disclosed -- a substantial part of it to be sure, but not everything. As a matter of fact, what I would recommend is that as part of the Holder memorandum it should specifically ask agencies to go back and review what they have been withholding from the public on that basis since 9/11 and to reconsider that in light of current conditions.
What about critical infrastructure information?
As it got up to speed, DHS became aware of a basic reality -- that if it wanted to protect the infrastructure of the nation, it had to deal with the fact that 85 percent of the infrastructure was out there in the private sector. And that made them very uncomfortable: How can we protect an infrastructure that we can't even wrap our arms around?...Well, we want to get information about the infrastructure from the private sector so we can begin to wrap our arms around it and therefore protect it from the presumed target selection and attacks that we're worried about.
A group of contractors, big-time contractors, led by Raytheon, got together and made an end run around the system...They actually got Bush to agree that he would give them special protection. And the reason I'm so clear on this is that when it leaked out that that had happened, I was amazed. They were able to secure from Bush this idea that even though the type of information they would be submitting is information that they could reasonably expect would be protected under existing law they wanted to have 100 percent certainty...That led to a process of "protected critical infrastructure information" that found its way into the Homeland Security Act.
There then arose an enormous controversy about "indirect submissions."... Congress... was absolutely explicit that the flow (information) that would be protected would be only flow that came to DHS, and DHS alone, directly. ...What was at stake is that the companies wanted to be able to shield what they otherwise would have been required by regulation to submit...The last time I checked before I retired, there was relatively little flow under this provision.
What is the biggest challenge of transparency for the Obama administration?
I'm going to give you two answers...
The traditional challenge is to really effect a cultural change after eigh' years of the most secretive administration we’ve ever had, at least in the modern era. It really is going to take a lot of aggressive work...to turn that battleship around and get it to jump up three or four times.
The other thing is a unique challenge...What Obama did Day 1 was so stunning, so positive, so full of promise, that I think it's going to be a real challenge to be perceived, fairly or unfairly, substantively or procedurally, as living up to that promise. For example, if the Holder memorandum does not come out by at least May 21, despite what the White House Press Office said, I think that will be looked at as a very negative thing. If they don't do a good job on the broader transparency memorandum when the Chief Technology Officer finally gets appointed and gathers people together to come up with recommendations for a good open government initiative, that will be a big letdown.
What President Obama did on the second (FOIA) memo...He didn't just say: Okay, Mr. Attorney General, make sure that you issue your memorandum and replace what Ashcroft did. He in effect already overruled Ashcroft…
Between the language he has in that memo and the broader memo and the language that he uttered at its signing, he in effect said to his new executive branch employees: Don't do it the way it was done before. ...You want to have a presumption of favor of disclosure...What does that mean in reality? ...If you're one of those 5,000 FOIA employees, you're sitting in a chair, you have pieces of paper in front of you or you're redacting on the screen. You have to make a decision yes or no. You've got to take the redaction this far, not that far. How does it translate? Well, the FOIA officers at agencies don't know that.
What happens to all the Whitehouse.gov Web pages from the Bush administration?
Time was, I could have given you a clear answer on that -- because time was, I would have said everything that Bush created within the inner White House would go in a box, get tied up with a bow and shipped to the presidential library under the presidential records act and that would be that. Now, we're not talking about pieces of paper that go in boxes. We're talking about a Web site. Legally, analytically, that's part of the presidential records system that they have there. So I would imagine whatever physical manifestations, whatever backup tapes are reflective of that content, the full archives, they go into that box. The electronic dots on a screen, they just fade away.