A threat to the free flow of information

President Donald Trump calls the press “the enemy of the people.”

Meanwhile, he poses an even more insidious threat to freedom of information, Oregon’s first official public records advocate told a crowd at Linfield College earlier this month.

Ginger McCall

As Oregon’s state public records advocate, Ginger McCall is charged with resolving disputes over public records and providing training on Oregon’s open records law. She earned her law degree from Cornell University in 2009. She served as associate director of the Electronic Privacy Information Center and adjunct professor of law at Georgetown University for two years. Before coming to Oregon in April 2018, she spent two years on the legal staff of the U.S. Department of Labor.

Ginger McCall arrived in Oregon last year after two years of service as a U.S. Department of Labor attorney. The atmosphere at the department definitely changed after the 2016 election, she said — especially when with regard to public records.

“One of the major changes I saw was that after the administration came to power, the money faucets opened up for (Freedom of Information Act) litigation,” she said. And the flood of new requests couldn’t have occurred at a worse time, as the infrastructure of the federal government seem to be crumbling beneath her feet.

“We didn’t have many political appointees in place yet,” McCall said. “The agency was understaffed. I think the result of that was that it was taking longer to process FIOA requests.”

Federal government has grown increasingly hypothetical under the Trump administration.

The Washington Post reported in March how 282 of approximately 700 high-ranking executive branch jobs — those requiring presidential nominations subject to Senate approval — remained vacant. And a quarter of the cabinet was filled by acting department heads.

“People underestimate the corrosive effect it has,” Max Stier, the president and CEO of the Partnership for Public Service, told the Post. “It’s like when you have a substitute teacher in your classroom. They aren’t going to take on the tough issues.”

McCall told the Linfield audience she experienced that problem first hand.

“By the time that I left, I could see that the federal FOIA process was beginning to break down,” she said. “The offices were understaffed. They were underfunded. They didn’t have proper technology to do efficient searches.”

Trump’s penchant for misinformation raises people’s suspicions, McCall said, which inspires the formation of “resistance” groups who counter through FOIA requests.

“All of a sudden, all of these new organizations sprung up, and they were making very broad FIOA requests, and they were litigating them almost immediately,” she said.

“The problem of understaffing and underfunding, it was not unique to the FOIA offices,” said McCall. “It was very distressing for me to watch and see that a lot of the enforcement offices out across the country were also being understaffed.”

The withering of the federal government was one reason she decided to move to Oregon, McCall said.

“It was distressing,” she said. “It was like watching a slow-moving disaster very close up. I was happy to get away from that.”

The ultimate losers in this situation will be the American people, McCall said.

“The end result of that will be that regulations and regulatory enforcement will begin to fail over time,” she said. “I think we’re going to see that play out in the next couple of years.”

McCall works for the Oregon Department of Justice. As the public records advocate, she supervises disputes over the release of public documents and trains people on how to efficiently obtain documents.

“I love it,” she said. “I love my job.”

She recalled being offered a tough choice in law school.

“They told us that you get to choose between high-level policy work where you’ll interact with actual human beings, or you can do boots-on-the-ground work with actual people, but you won’t be able to deal with the systemic issues,” McCall said.

But she can do both. “I’m very fortunate in this job that I deal with the systemic issues, and I get to make policy recommendations, but I get to help actual people every day,” she said.

Despite her criticism of the Trump administration, McCall said there is still cause for some optimism regarding freedom of information on the federal level.

John Ashcroft, the attorney general under George W. Bush, issued a memo in 2001 assuring federal department heads that he would have their backs if they decided to impede FOIA requests. At least Trump hasn’t launched that sort of frontal political assault of the FOIA, McCall said.

“I didn’t see any top-down change in FOIA processing while I was at the Department of Labor, but again, we didn’t have many FOIA appointees in the place by the time that I left,” she said. “There wasn’t a lot of leadership direction being given at that point.”

Then again, some basic decisions are no longer left to the president and his appointees. The law now prohibits Ashcroft-style meddling within the executive branch.

“We wanted to get the presumption of disclosure enshrined in the law, and we did manage to do that,” McCall said. “One of the changes that was part of the FOIA Improvement Act of 2016 is that now the presumption of disclosure is there in the text of the statute.”

Weighing the law on the side of disclosure used to waiver between administrations.

“That was the thing that was always the subject of these warring memos,” McCall said. “Now it’s right there in the law, so it can’t change when the administration changes.”

If an agency tries to deny information, its officials must complete what’s called a Foreseeable Harm Analysis.

“It can only withhold the information if there’s a foreseeable harm that will result from the disclosure of the information,” McCall said. “That was something that was also frequently the subject of those memorandums, which would change with every administration.”

Even so, she said, FIOA requests can take a long time.

When a person requests public documents, the request is sent to the expedited, simple or complex queue. Only simply and narrowly defined requests move to the expedited cue.

The broader the request, the greater the likelihood it will land in the dreaded complex cue.

“The complex cue can go on for years,” McCall said. “Some agencies have a five- to 10-year backlog on the complex cue.”

Before McCall joined the Department of Justice, she served as associate director at the Electronic Privacy Information Center, where she regularly pursued FOIA requests on the agency’s behalf. “I made some such requests while I was at EPIC for which I am now doing penance,” she said.

McCall received a text message in October from a former EPIC colleague now working for the Department of Homeland Security.

“A request that I had submitted to the U.S. Department of Homeland Security in 2012 had landed on her desk for processing,” she said. “That’s how long the complex cue is.”

In the wake of the terrorist attacks of 9/11, even journalists became nervous.

They questioned how open the federal government should be with information. After all, America needs to be protected against its enemies.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press at the time, responded to their concerns this way:

“Do you really think Osama bin Laden is squatting in a cave filling out a FOIA request? He would die of old age before he got any documents, let alone ones that could possibly be of any use to him.”

What she said next speaks to all journalists and citizens concerned about the future of democracy.

“Secrecy doesn’t make us stronger,” Dalglish said. “Do you feel safer in the dark?”