WASHINGTON — Democrat Barack Obama and Republican John McCain say they'll review a key question that has roiled the government's attitude toward releasing information to the public for three decades. Only Democrat Hillary Rodham Clinton flatly promises to replace the Bush administration policy.
The question is this: What to do when a member of the public has used the Freedom of Information Act law to request information that is technically exempt from release but the federal employees reviewing the request cannot see how release would harm national security, an ongoing criminal investigation or any other interest explicitly protected from disclosure by the act.
The first salvo in this long debate came from President Carter's attorney general, Griffin Bell. He told freedom of information officers around the government to withhold any data whose release clearly would harm national security or other protected interest, but where they could not see how any harm would ensue, they should release the information.
When President Reagan returned Republicans to power, his attorney general, William French Smith, reversed the policy. He told agencies in 1981: When in doubt, withhold the information. He said the Justice Department would defend any decision to withhold that which had a "substantial legal basis."
After the election of Democrat Bill Clinton, his attorney general, Janet Reno, again reversed the policy to favor release when it was a close call. She told agencies in 1993 there should be a presumption in favor of disclosure and the department would not defend withholding data merely because there was a legal basis to do so but only when an agency "reasonably foresees that disclosure would be harmful."
President George W. Bush's first attorney general, John Ashcroft, reversed the policy again and advised agencies that the Justice Department would defend any plausible legal argument for withholding information.
Congressional Democrats set out to reverse Ashcroft's policy and last year enacted the OPEN Government Act of 2007 designed to make agencies more responsive to information requests, but Republicans forced amendments so that by the time Bush signed the bill, it did not overrule Ashcroft's guidance.
All three presidential candidates were asked if they would reverse the Ashcroft order. The most direct response came from Sen. Clinton's campaign, which said she favored Reno's policy and a presumption of openness and opposed Ashcroft's. The campaign said she would instruct her attorney general to press agencies to release information "if disclosure would do no harm," which is essentially the Reno standard.
Sen. Obama spokeswoman Jen Psaki said Obama "has made clear that he will task his attorney general with immediately reviewing Bush administration executive orders so that he can reverse any directives that are unconstitutional or unnecessarily infringe on the civil rights and liberties of the American people."
The Clinton campaign said that "Hillary Clinton supports Attorney General Reno's approach and rejects the approach of Attorneys General Ashcroft and (Alberto) Gonzales. There should be a presumption of openness for documents requested under the Freedom of Information Act, and she would instruct her attorney general to press all agencies to release information if disclosure would do no harm."
Sen. John McCain said that though he understands why the Bush administration has made the choice it had made "I would have the whole process reviewed to make sure we were giving the American people and the media as much information as we possibly can."
"The danger with overclassification is you cheapen the classification so therefore it is more likely to be leaked or disclosed," he said.