One of President Obama’s first acts after taking office was to issue a remarkably strong affirmation of the Freedom of Information Act.
“The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” the president said. “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.”
In the past two and a half years, there have been many reasons to question whether administration officials are actually following this directive. At the Investigative Reporting Workshop we have had our own struggles and we have written about them.
But nothing we’ve seen compares with an outrageous story unfolding in Los Angeles.
The Department of Housing and Urban Development is demanding that a local citizens group, We ARE Marina del Rey, return 125 pages of records the agency released under a FOIA request. The group also was told to destroy any copies it had made of the documents.
HUD lawyers also demanded “that you immediately Cease and Desist (emphasis in original) in making any and all disclosures of the aforementioned documents and/or the information contained therein. Additionally, any and all dissemination, including electronic disseminations, disclosure, distribution, use, and/or copying of these documents and/or the information contained therein is strictly prohibited.”
The government also asked for the names and contact information for anyone that We ARE Marina del Rey might have given copies of or access to the documents, presumably so it could go after them, as well.
The group has told HUD it won't do anything with the documents until the challenge is resolved. HUD said last week it improperly processed the documents and reiterated its demand for the documents' return and repeated the request for the group to identify people who might have received the documents.
The documents have made their way to the fulldisclosure.net website, which has posted copies of them, along with a video report about the development and the controversy over the HUD records.
For its part, HUD says it is only trying to correct an error in FOIA processing.
“Humans make mistakes. After reviewing what was released, we realized the documents provided were not as responsive as they should have been. We’re simply asking the gentleman if he would return them,” Jereon M. Brown, HUD deputy assistant secretary in the Office of Public Affairs,” wrote in an email.
This saga started out innocently enough.
HUD has given a $125 million loan guarantee to a company that is building a 544-unit apartment complex in Marina del Rey.
The citizens group, which opposes the proposed redevelopment of the Los Angeles County-owned marina, asked HUD for “access to and copies of all loan documents, including the loan guarantee and subordination provisions, for the Shores residential development project in Marina del Rey, CA.”
The request was made by email on March 23. HUD responded on April 15 (an astonishingly fast response) with a full grant (also remarkable).
“It has been determined that all requested documents are releasable without applying any exemptions,” wrote Ray W. Brewer, HUD’s Los Angeles field office director. The agency charged $72.20 for finding and copying the 125 pages. The letter also points out that, under FOIA policy, the same information will be available to other requestors.
At that point, this would have been a FOIA success story of an agency acting swiftly to fill a request without withholding any information. Just the sort of thing the president had in mind.
But, alas, that was not the end of the story.
Apparently, HUD’s actions upset the developer, who complained that the agency had released confidential business information that should have been protected from disclosure under Exemption 4 to the Freedom of Information Act. That's when HUD first demanded the documents be returned.
On that point, regrettably, the company might be correct, given the current state of the law. As we have written previously, the application of Exemption 4 has given corporations virtual veto power over release of information they provide to the federal government. And that is true even when the government is handing over millions (or in some cases billions) to these private entities.
Usually, agencies ask companies in advance whether requested information can be released. HUD apparently didn’t take that step in this case. Agencies can release information over company objections, but few do. So it is hardly surprising that the agency is willing to do the bidding of a private company.
However, HUD’s response seems overbearing, at the least.
First, the general rule in FOIA is that once a document has been released, it is in the public domain. Actually, agencies should go so far as to post copies of records they have released so that future requestors don’t have to go through the process. Again, few do that.
Unfortunately, We ARE Marina del Rey has told HUD it would return any documents that are legally determined to have been wrongly released. This is a bad precedent. Agencies should not be able to pull back records, and certainly not at the whim of a private company.
Second, HUD lawyers should not have demanded that the group stop disseminating the documents it received. The Supreme Court settled the issue of prior restraint 40 years ago this month in the Pentagon Papers case. If the government can’t prevent publication of materials which might harm national security, it is inconceivable it can enjoin someone from disseminating information about a loan guarantee to a private company.
Third, a witch hunt for others who might have the documents is ludicrous.
We will continue to follow this story as it develops.