Recent weeks have seen government entities at all levels—federal, as well as state and local here in South Carolina—taking actions regarding public and media access to government information, primarily to limit access until the courts or public shaming intervened. Ironically, these efforts coincided with the 60th anniversary of President Lyndon Johnson signing the federal Freedom of Information Act on July 4, 1966 (although it did not go into effect until one year later, on July 4, 1967).
Recent actions regarding access to government information include the following:
•  The federal Department of Justice issued an Aug. 10 memo declaring that the President’s “executive privilege” to withhold documents includes not only communications between the President and Executive Branch staff—as the privilege has heretofore been construed—but also communications between the President and advisers outside of government. “As a general matter,” the memo concludes, “executive privilege can apply to presidential communications with private advisers so long as the communications (1) relate to official presidential decision-making, (2) involve or reflect communications with the President or his direct advisers, and (3) are confidential.” The memo is not legal precedent, but will likely drive the Trump administration’s approach towards disclosure of presidential records, and could affect a number of pending court cases involving such records.
•  The memo regarding the scope of executive privilege comes after the department issued another memo on April 1 concluding that the Presidential Records Act is unconstitutional. The Act—adopted in the wake of the Watergate scandals and the Nixon administration’s refusal to provide documents to investigators—generally provides that most Executive Branch records are public documents, and must be turned over to the National Archives and made publicly accessible after an administration leaves office. In May a federal judge rejected the memo’s interpretation and issued a preliminary injunction largely requiring the current administration to continue following the statute. The administration is appealing the injunction. Read more