Meditations on FOIA and Presidential Libraries

By alanamhmd

After relinquishing his family’s iron grip on the White House, former president George W. Bush has sought to reinvent himself as a Renaissance Man of sorts. He wrote a book about his father, he took up painting, and last April, he unveiled the George W. Bush Library and Museum Center. He “views this as a way for the public to get all the facts so that they can make an educated decision about how they regard him and what he did in office” according to Mark Langdale, who was head of Bush’s private foundation and oversaw construction of the library. He also mentions that Bush himself took on curatorial responsibilities: “He literally looked at every exhibit and said, ‘I want this, I want that.’” 1

 

It seems Bush hopes this library will improve his standing in the public eye, possibly to help his brother’s chances of running for president in 2016. He believes that the library will better contextualize his decision-making by providing the public with important official information. However, during his presidency, Bush’s policies seemed to encourage the opposite, aiming to keep his public in the dark.

 

This is hardly topical in either the Library Science field or in American politics, but McChesney’s Digital Disconnect and Lessig’s Free Culture reminded me of the heavy ironies that burden the American government’s attitudes towards freedom of information.  McChesney dismisses the idea that the web has brought us closer to the democratizing of information since large companies control what we see and how we can use the internet while it becomes a gateway for the government and advertisers to monitor our activity.  In particular, he identifies copyright as a significant factor in digital giants “establishing proprietary systems for which they control access and the terms of the relationship” instead of protecting the idea of the internet as an open source of information. 2  Lawrence Lessig argues at the beginning of Free Culture that our free culture has been “queered by extremism in the property rights that define it.” 3   The internet has long contested ideas of who owns information and who gets to access said information.  However, these inquires seem to stop at the federal level.  With new bills being pushed to simplify online access to records provided by the Freedom of Information Act, it seems appropriate to examine how official records have been shared in the past.

 

Under the Presidential Records Act of 1978, presidents and vice-presidents must release their records to the US Government no later than (a very long) twelve years after leaving office. The records are held by the National Archives and available to the public, except under certain exemptions defined by the Freedom of Information Act.   Bush twice blocked the scheduled release of 68,000 pages of Reagan documents so that his legal team could review them and judge whether they were fit for public viewing. This resulted in his issuing of Executive Order 13,233, which gave former Presidents, their heirs, and former vice presidents the ability to block their records from going public for an indefinite amount of time. 4  This seemingly unconstitutional move was not rare.  McChesney notes, “In 1995 the government classified 5.6 million documents; in 2011 it cassified 92 million documents…The US Government spends, by conservative estimate, $13 billion annually to make and keep secret government information.” 5  Though the Freedom of Information Act exists to keep a well-informed public, the government often exploits its nine exemptions to withhold information.   The National Security Archives had to file an action to get the order partially dismissed. The judge ruled that Presidents could not keep information from the public, but did not rule on the role of heirs and vice-presidents. It was only when President Obama took office that the order was fully dismissed. 6

 

Coincidentally, the Bush library was opened to Freedom of Information Act requests starting this past January. Theoretically, this is the heart of the library: open information, free to the public. But, the National Archives FAQ page demonstrates how flimsy this supposed open access is. Documents are considered closed until a requester files a FOIA request for a particular folder and must be reviewed before they can be released. If there is any classified material in the document, it is immediately labeled classified and the request is denied. Declassification reviews can be ordered by the requester, but those can be passed around to as many as 14 government agencies before probably being denied. 7

 

On top of that, there is the bureaucracy that is so fundamental to our federal body. Requests for documents cannot be requested until five years after the president has left office. A president is allowed to restrict public access on specific documents for another twelve years. And even after that, the normal exemptions of the FOIA still apply and requesting information.  FOIA requests vary by department and requesters can often get shuttled around from one to another in their search for these supposed public records. Recently there’s been a bipartisan bill the House has been trying to push through to improve FOIA which would include the creation of a single FOIA website that streamlines the request process. It focuses on clarifying FOIA’s fifth exemption, which deals with the withholding of “intra-agency” documents, but is often called the “withhold it because you want to” exemption due to its large scope and vague wording.  While documents are considered closed until requested, the FOIA Improvement Act would encourage a “presumption of openness” regarding documents. However, similar bills have been rejected three times already. And even so, many documents would remain out of reach from the public as documents from the Eisenhower Library and before would still be considered classified. And, as Bush’s legal team has already demonstrated, presidents can often find loopholes for holding information and negotiating with judge rulings. 8

 

It seems strange that the man who was so miserly with former presidential documents would want to share his own. But of course it’s not. The old adage that knowledge is power is so much more true when you have state-sanctioned Presidential Library Acts and wealthy donors behind you. Presidential libraries have strayed from attempts to improve transparency between presidencies and citizens. Instead, they have become sites for creating fables. Bush is able to construct his own presidency by building this library and museum. Some even act as shrines to past presidents: Eisenhower, Nixon, Reagan and others have been buried at their libraries. 9

 

This all seems deliberately removed from the original purpose of libraries, especially when we consider who controls presidential libraries. While the National Archive owns papers and maintains these centers, private money dictates how elaborate these museums can be and what can be featured. 10 For example, the Reagan museum features an exhibit called “Amazing Automobiles: The Ultimate Car Exhibit” and is on view until May 2015.  Essentially, the National Archives pays to maintain giant, irreverent billboards for our past presidents, funneling money into upkeep where they should be concerned with the preservation of our presidents’ important historical documents.

  1. Bailey, Holly. “As a new library opens, Bush hopes for a reassessment of his legacy.” Yahoo News, April 25, 2013. Web.
  2. McChesney, Robert. Digital Disconnect. New York: The New Press, 2013.  EBook.
  3. Lessig, Lawrence. Free Culture. New York: Penguin Press, 2004.
  4. “Archive, Historians Ask Judge to Rethink Dismissal…” The National Security Archive, April 30, 2004. Web.
  5. McChesney
  6. Fuchs, Meredith. “Court Rules Delay in Release of Presidential Papers is Illegal.” The National Security Archive, October 1, 2007. Web.
  7. Adair, Kristin and Nielsen Catherine. Effective FOIA Requesting for Everyone. DC: The National Security Archive, Jan 2009. Web.
  8. Adair and Nielsen
  9. “Frequently Asked Questions about Presidential Libraries and Museums.” National Archives. Web.
  10. National Archives.
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