The Biden administration has turned what should be the most transparent of government agencies, the National Archives and Records Administration, into one of the least transparent agencies—rivaling even the FBI.
Established in 1934The National Archives is a national archive with the mission of identifying, protecting, preserving, and making publicly available all historically important records.
The Biden administration has made the National Archives a politicized institution that no longer provides transparency for public records.
Jodi Foor, the National Archives’ deputy Freedom of Information Act officer, would not answer a FOIA request from The Heritage Foundation’s Oversight Project for records related to the FBI’s raid on former President Donald Trump’s Florida home within the statutory timeline.
The Heritage Foundation sued to get a response. (The Daily Signal is Heritage’s multimedia news organization.)
The National Archives withheld 96%, or approximately 1,612 pages, of records relating to the Trump raid from the public when it released its first tranche.
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The National Archives released only 65 pages of those 1,612 pages of records, with 1,547 pages withheld under the “deliberate process privilege” exemption as well as an exemption that protects from disclosure records compiled for law enforcement purposes.
The deliberate process privilege gives federal agencies the right to withhold certain documents related to policymaking that were intended to assist a decision maker in making a final decision.
For 95% of the documents withheld, the National Archives asserted that officials were protecting deliberations with Congress, Trump’s representatives, and other federal agencies.
Foor’s lack of transparency raises eyebrows because Congress tasked the National Archives to mediate all disputes regarding the Freedom of Information Act, or FOIA; arbitrate disputes between requesters and federal agencies; identify methods to improve compliance with the statute; and educate stakeholders about the FOIA process.
Not surprisingly, Foor isn’t even following Attorney General Merrick Garland’s new FOIA transparency policyHe announced this in a March 22 memo. This policy states that records “should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure.”
“In case of doubt, openness should prevail,” Garland’s transparency policy states.
Withholding 96% of records requested doesn’t show openness in any respect.
Garland’s memo on transparency goes on to state:
When an agency determines that it cannot make full disclosure of a requested record, FOIA requires that it ‘consider whether partial disclosure of information is possible’ and ‘take reasonable steps necessary to segregate and release nonexempt information.’
The FBI was able to disclose some information on each page of its affidavit justifying its Aug. 8 raid on Trump’s home in Florida, but the National Archives apparently isn’t able to so in any sense.
Foor’s lack of transparency also conflicts with former President Barack Obama’s FOIA memorandum, which he personally issued on his first day of office on Jan. 20, 2009.
Obama’s memo said that:
The government should not keep confidential information because public officials might feel embarrassed by disclosure, errors and failures might be exposed, or because of speculative fears. The government should not attempt to protect the interests of its officials at the expense or benefit of the people they are supposed to serve.
Finally, no FOIA exemption protects congressional records or deliberations. Federal case law states that if an agency obtains records from Congress or creates a record in response to a congressional request, the congressional record can be exempt only if “Congress manifested a clear intent to control the document.”
Foor did not say that the National Archives had a previous agreement with Congress to withhold these records in her response to The Heritage Foundation’s Oversight Project.
It appears that Foor is using the exemption in an improper way to protect the personal interests former Archivist David Ferriero (who left the agency April 30) as well as Acting Archivist DebraSteidel Wall (who began May 1) at the cost of the American public.
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