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Letter From the Editor: ‘Craig Memo’ Neuters Freedom of Information Act

Opinion

It was 48 years ago this Fourth of July weekend that President Lyndon B. Johnson signed into law the original two-page Freedom of Information Act (FOIA). LBJ reportedly was reluctant about opening federal records to the public, but he nonetheless promoted it by saying this would be “the most transparent” administration in history.

Just kidding about that last part. I don’t remember LBJ ever using the meaningless mush words of today such as “transparency” or “sustainability.” He ran the government like his personal fiefdom, and everybody who was not comatose at the time knew it.

FOIA became effective a year later on July 4, 1967, a date that would have also seen its immediate repeal had a mix-up not been caught and corrected.

Those were the days when we were not politically divided when it came to having a basic grasp on reality. We all knew LBJ was lying whenever his lips moved, and then we went ahead and elected Richard Nixon for more of the same.

FOIA was fully in effect during Nixon’s first term, and the new disclosure law’s effect on history was essentially zero. Watergate taught us plenty about “executive privilege” but precious little about FOIA compliance.

The reason FOIA has not played much, if any, role in reporting about any presidency in the past nearly half-century is, of course, that the White House is exempt from its provisions and amendments and many of its implementation policies.

So those who make use of FOIA do so at the federal departments and agencies that do fall under its jurisdiction. Congress is also exempt. Those who mine the federal government for information under FOIA are not without their accomplishments, but it takes time.

Personally, I’ve always viewed the federal FOIA are something mostly for lawyers, historians and all the interests who set their tents up alongside the government. FOIA makes obtaining government records long, complicated and expensive. It makes it harder to get people of conscience who work inside the government to just slip documents to those of us who can put them to work.

Nevertheless, I’ve had the honor of working with people more patient and organized than I am who’ve made good use of FOIA as the basis or as an enhancement for investigative reporting. Food safety reporting involves big bureaucracies making millions of decisions involving thousands of players. This kind of subject matter cries out for analysis of data and information. FOIA can be a valuable tool. So, while I am not much of a user myself, I fully support those who do use FOIA to advance the public’s right to know about their government.

And all I could feel was total outrage when I read the “Craig memo” sent out by a White House that operates in more secrecy than anyone with any honest memory  can recall while it conducts a propaganda mechanism inside and outside the government that is unmatched in history.

We all knew that before the “Craig memo” surfaced. Now we know that a plan carried out in secret has been more successful that Nixon ever dreamed. “Tricky Dick” failed and was mocked about his plan for newly uniformed “Imperial Guards” around the White House. Now “Mr. Transparency” has overwhelmingly succeeded in sealing off an Imperial White House from the public’s right to information about its government.

For those making FOIA requests, I regret to inform you that this is now really only about history because journalism failed to disclose the existence of the “Craig memo” when it was issued in the early days of the Obama administration more than five years ago.

Until now, those making FOIA requests did not have any way of knowing that “White House equities” could be responsible for delays, retractions or denials of your request.

Gregory Craig, the Beltway lawyer best known for representing Ronald Reagan’s would-be assassin, was President Obama’s lawyer on April 15, 2009, when he sent a memorandum to all department and agency attorneys in the federal government.  This was at the same frothy time when the compliant White House media were actually accepting Obama’s word that his administration would be “the most transparent in history.”

But, in secret, federal departments and agencies were being ordered to check with the White House before fulfilling requests for public documents “that may involve” any of those “White House equities.”

Yes, the White House, itself excluded from FOIA compliance, has now inserted itself as a wall between the people and public documents. And, while other administrations used the “wink, wink” and “nod, nod” methods of getting a “heads up” on the release of embarrassing government information, this is way different.

The “Craig memo” is a written order applying to the entire federal government. It is highly damaging, and it was conducted in secret. No amendment to the FOIA in the past 48 years has been more important. (And those are offered and debated in public in something we once called “our republic.”)

I’m really wondering why anyone of Craig’s ilk ever put such an order in writing. One can speculate that someone even back then was unwilling to submit to this travesty unless it was in writing, or was it simply because department and/or agency lawyers could be trusted not to leak it?

If there is enough of the FOIA left, maybe the historians can find those answers.

Oh, one more thing to note. No one seems to have a legal definition of that broad-brush little term “White House equities.” It’s not a FOIA term, was never defined by Craig (who is back to his Beltway stuff), and those who are paid to sing and dance for the White House have declined opportunities to say more. Typical.

The American Civil Liberties Union calls the White House inserting itself into FOIA requests “very troubling.” The “Craig memo” was uncovered by the government ethics group known as “Cause of Action” and came from a federal whistleblower. Various congressional proceedings earlier suspected that the Obama White House was slowing or denying the flow of public information, but, until the “Craig memo,” it could not be proven.

One thing I remember before Nixon resigned was that fear existed across the land that his attempts to use “executive privilege,” the existence of his “enemies list,” and his desire to use the IRS for political purposes might leave behind a permanently corrupted federal government.

It would be easy to end this here by saying I guess it did. But Congress, over President Gerald Ford’s veto, strengthened the FOIA after Nixon left. And there was nothing imperial about Jimmy Carter. Our fears that Nixon did irreparable harm to the body politic subsided over time.

But it’s back now. Taking out FOIA in secret is just another troubling incident like the National Security Agency’s spying on Americans. To paraphrase a founding father, we are giving up too much liberty in name of security, and we are getting neither.

The trappings of an “Imperial Presidency” are unending at the White House. The “Craig memo” is yet another example of the White House’s arrogance and utter disregard for the law.

It was 238 years ago that some rebels in Philadelphia had to remind King George III that governments derive their powers from “the consent of the governed” and “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

The “Craig memo” is certainly destructive of FOIA’s ends, and we sadly are at the moment in time when we know the only information coming out of the federal government is that controlled, permitted and approved by the White House.

It means, my friends, that on this this Fourth of July weekend, freedom is trending in the wrong direction again.

© Food Safety News
  • http://burningbird.net Shelley Powers

    Whatever, point you wanted to make was lost in the barely coherent political rantings–you sound more like someone’s drunk Uncle Bob than an editor of a respected food safety publication.

    As for the “alarming nature” of this memo, ask your boss man about how FOIA works. Ask about redacting restricted information, personal information, or information not covered by the FOIA.

    I go to the EPA for a copy of the Administrative Record on a court case I followed (the Sacketts’ lawsuit against the EPA). What I get back is most of the record with certain information redacted, as dictated by the FOIA. The same for the Administrative Record on other court cases I follow.

    This “Ohhh, censorship! Horrors!” plaint you have, is exactly what’s happening in these cases.

    As for the White House memo, in this day of extreme partisanship, when the former Senate leader vows to spend all of his time working to defeat the President (rather than his job), when even the most innocuous happening becomes a trigger for yet another Congressional hearing, the fact that the White House wants to view documents and redact anything allowed under the FOIA is not only understandable, but is business as usual—which is why only newspaper rags (Washington Times and Washington Examiner) and unaccountably this publication is having a hissy about it.

    And this reading of the memo is new: for another look at this memo, check out http://www.mainjustice.com/2010/04/07/justice-fell-behind-in-foia-processing-in-2009/

    As for your complaint about the FOIA—it has helped folks in the animal welfare movement highlight egregious violations of the Animal Welfare Act, leading to an audit of the USDA, which has then triggered more rigorous enforcement. Not to mention closure of several particularly bad puppy mills. And that’s just one tiny piece of action that the FOIA has helped trigger.

    The FOIA is one of our most important tools, more so because even a regular Joe or Jane, a non-jounalist, non-lawyer like myself can make use of it, and then publish the information for others to see (rather than have it filtered via both lawyer and news publication).

    Perfect? Of course not, but it’s so much better than what so many other countries have.

    • John Munsell

      Regarding your charge of “barely coherent political rantings”: Bill Marler & perhaps others finance Food Safety News. I’ve never heard anyone accuse Bill of being a Republican. In fact, he has mentioned on FSN how he has contributed to Democrats. Dan Flynn is merely reporting the news, and connecting the dots. FSIS, under both Republican & Democrat administrations, has responded to my FOIA’s by redacting all harmful evidence, so this is NOT a political issue, but a food safety issue and gov corruption. However, I’ve never seen before any administration claiming they would be more transparent than any previous administration, other than the current administion making this now-specious claim. This claim constitutes an eggregious and deceptive ploy, and now deserves a blog much more damaging than what Dan Flynn wrote. White House minions must think we are all ignoramuses………..just like Nixon acted, as did Clinton. John Munsell

      • Andre

        “Gregory Craig, the Beltway lawyer best known for representing Ronald Reagan’s would-be assassin”

        It would be hard to think up a more blatantly partisan ad hominem.

        • John Munsell

          Andre, I respectfully disagree. USDA’s FOIA office has been outrageously deceitful with me, under both Republican as well as Democrat administrations. Gov agencies have morphed into a 4th branch of government, with grossly inadequate checks and balances. Congress funds them, provides carte blanche authority, then steps aside. These agencies act as though they are immune from accountability, because in fact, they are immune! Who cares? I perceive that Americans are becoming more cognizant of such corruption, and are reaching a point where a catharsis will be demanded. Meanwhile, when confronted with blogs such as this, we must set aside our political differences, and demand gov accountability, regardless of which party is in power. We must remember that we are Americans first, and a Democrat or Republican in a distant 2nd place. BTW: although I was a hard core Republican for many decades, I became an Independent when young George Bush was in office. Not surprisingly, I’m finding countless other Americans jettisoning both parties, and going Independent. We want ALL the evidence, regardless of who is in power. John Munsell

      • http://burningbird.net Shelley Powers

        I wrote my comment to a story by Dan Flynn. His political leanings are not the same as Bill Marler’s. And the only reference I made to Mr. Marler was in relation to his legal training, not his political leanings.

        Mr. Flynn is not reporting the news, he’s expressing an opinion for most of this piece. And it was not a well researched opinion at that. This memo has been known about for at least a year, and was part of a process that’s been understood since 2009.

        But he’s reacting to a hack piece in the Washington Times–not a publication I would classify as “reputable”.

        White House minions…government corruption because of document redactions…Dan, this is who you’re attracting with pieces like this.

        Something to think about. Hard.

    • FOIAGuy

      “the fact that the White House wants to view documents and redact anything allowed under the FOIA is not only understandable, but is business as usual”

      If you bothered to read the Washington Times story, it is clearly not business as usual. As one FOIA officer told the Times:

      “Under the Bush administration, the White House would sometimes want a heads-up if very sensitive information had been requested, but they didn’t care if they heard about it after documents had already been sent out; FOIA requests were not going there for approval,” said one FOIA officer. “What changed with President Obama’s administration was that the White House wanted to see requests far in advance, and they wanted to control the timing of the release and what was going to be released.”

      “And this reading of the memo is new: for another look at this memo, check outhttp://www.mainjustice.com/201…”

      Did you read the memo linked in the piece? You are linking to a publicly released memo that has nothing to do with the one mentioned in this story.

      • Oginikwe

        Did you read the memos (there are more than one link and more than one memo) linked in the piece? Ms. Powers is spot on with her information. It is “business as usual” as much of this “censorship” started under Reagan.

  • John Munsell

    Excellent article Dan, & I fully agree. I’d like to briefly explain how USDA’s meat inspection dept misuses FOIA to its corrupt advantage. Twice I FOIA’d documents regarding outbreak/recall evidence, only to be told “Please be advised that a search by knowledgeable staff in FSIS failed to locate any documents that would be responsive to your request”. I smelled a rat. I then obtained the evidence from other PUBLIC sources, and then communicated again with FOIA asking why their office didn’t have the records, which were already available via PUBLIC sources. The FOIA office then visited with their “knowledgeable staff” again, which was then magically capable of producing the requested evidence. Not only does our “transparent” gov lie, it is fully corrupt!
    Another current example: USDA/FSIS’ Front Line Supervisor (FLS) in Montana, the top meat inspection official in our state, was recently the subject of an intensive investigation which focused on affidavits provided by meat inspection officials in the state: inspectors and veterinarians alike. All these FSIS employees revealed unethical & illegal actions performed (mandated) by the FLS for several years. Please note: these affidavits emanated from gov employees, NOT the industry, providing an impartial, experienced & trustworthy source, divorced from the profit motive of Montana meat plants. The investigation was performed by the Internal Controls Staff of FSIS, which reports directly to Al Almanza, the FSIS Administrator, denying Deputy Administrators the ability to squash the investigation.
    A month ago, we were informed that the investigation is complete, the report has been filed, and we can expect action to be taken in 6 – 12 months. Egads, up to one year before a gov employee can be reprimanded for inappropriate actions? FSIS issued me a Notice of Intended Actions one time, and gave me 3 days to respond or they had the right to remove inspectors from my plant. Interesting: 3 days versus 12 months!
    How does this relate to your FOIA concerns? Well, although the investigation focused on misbehavior of the FLS, the investigation also revealed that previous investigations of the same individual were squelched (covered up) by high-ranking FSIS officials in two District Offices, and in DC. No way will top FSIS brass allow such powerful bureaucrats to be caught in the same net. And as you stated in your article, the White House now has ultimate authority over FOIA releases to the public. Will the Oval Office allow this investigation to discipline top FSIS officials, realizing such actions will be an embarrassment to the President? No. It is also pertinent to note that once the investigation’s white-washed report is issued, I will personally FOIA all the affidavits, the contents of which will prove corruption in the District Offices and in DC headquarters, which operate directly under the nose of the Oval Office, from which FSIS also derives its authority.
    Watch this one closely, and it might be worthy of future Food Safety News articles. Full revelations just might show White House complicity?
    ps An example of high-ranking FSIS officials conducting activities without even informing the USDA Under Secretary at FSIS: From February 6 – 17, 2006, teams of FSIS OPEER investigators visited EVERY Federal Plant in Montana, primarily because of numeous complaints at that time of actions taken by the same FLS. Massive expenditures of taxpayer funds were required to conduct this all-encompassing investigation of every MT plant. It is interesting to note that OPEER officials conveniently kept the USDA Under Sec (Dr. Richard Raymond) totally in the dark, as he was unaware of these actions until years later. How many actions are still secretly occuring without Al Almanza or Tom Vilsack being cognizant of these scurrilous actions? Thus you can see, this current investigation went well beyond just the FLS activities.
    And by the way: the massive February 2006 investigation totally exonerated the FLS. Surprise, surprise!
    John Munsell

    • http://burningbird.net Shelley Powers

      And you most likely will not get anything from your FOIA request at this time because the material is _part of an ongoing investigation_.

      The problem you all have with the FOIA is that none of you take the time to understand how it works.

      And too many conspiracy movies doesn’t help. I suggest a nice Disney animation from time to time.

      • John Munsell

        Perhaps I didn’t make myself clear. I won’t submit a FOIA until AFTER the final report has been issued, and FSIS takes action. Thus, there’s no ongoing investigation.
        I’ve done numerous FOIA’s……I know how they work. And I’ve done them under Republican and Democrat administrations.

  • Greg Roach

    This editorial does not belong in this journal. A rational editorial regarding how FOIA requests are used in food safety, along with a critique of the current system, would be appreciated, but not a screed with a clear animus. Save that for another publication or your own blog.

  • Lwaisvisz

    http://www.forbes.com/sites/harveysilverglate/2011/11/09/obama-learns-newspeak-the-administrations-perversion-of-the-freedom-of-information-act-foia/
    UPDATE: Under pressure from legislators, including Senator Patrick Leahy of Vermont, the Obama Administration has retracted its proposed rule change to the Freedom of Information Act. While we are gratified that the changes were never implemented, we remain quite disturbed that the administration proposed them in the first place. Our original article is below.
    11/09/2011 10:37am Forbes article
    So is this true or not? And I am not sure how this involves Food Safety in particular.