Editor’s Note: Transparency in government operations is careful balance between the public’s right to know and the public’s right to have their government’s sensitive discussions protected from inappropriate disclosure. The Freedom of Information Act (FOIA) is the statutory embodiment of the appropropriate balanace between disclosure and protection of government data and contains multiple exceptions to disclosure requirements. Examples of material which Congress determined should be protected from disclosure include:
Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:
- Attorney-Work Product Privilege
- Attorney-Client Privilege
- Deliberative Process Privilege
- Presidential Communications Privilege
An NGO, the Center for Effective Government, has recently opined that a legislative proposal to modify FOIA, The Transparency in Government Act, which would effectiely negate the statutory protection of communications between the President and the government he leads:
Furthermore, the bill seeks to open the door to the White House Office of Information and Regulatory Affairs (OIRA). The office has long been considered a “black box” in the rulemaking process, where important public safeguards can get stuck for months or years under “review” without a public explanation for the delay or any estimate of when the rule will move forward. When rules finally do emerge from the office, it is difficult or impossible to determine how OIRA may have changed them.
The bill would require OIRA to post online any draft rules submitted to the office for review, along with post-review drafts. OIRA would also have to summarize any substantive changes it made to those rules. Moreover, the bill provides much-needed transparency of the review process by requiring the office to disclose communications about rules under review between it and agencies, other White House offices, and outside parties.
Negating statutory protection for inter-agency Presidential communications would further reduce regulatory coordination and the abilility of the President to effectively lead the country.
