Make America Transparent Again: Reevaluating the Official Acknowledgment Doctrine of the Freedom of Information Act for the Modern Presidency

Abstract

The state of the Union is [REDACTED]. The United States is facing a new kind of transparency problem that manifests when the President speaks on a secret or classified topic: the exemptions to the Freedom of Information Act (FOIA) keep what the President has spoken about secret, despite the President's public discourse. To remedy this problem, this article proposes the acknowledgment a new judicial for application when the President speaks—or tweets—about information that would ordinarily be exempt from access via FOIA. This proposed is more lenient than the existing acknowledgment test that is applied in cases where a FOIA exemption may have been waived by public discussion of a topic. This article argues that the ordinary official acknowledgment is flawed as applied to the President, and that adopting the separate proposed by this article will foster the government transparency that FOIA is meant to facilitate. This article reflects upon an original collection of thirteen cases in which the ordinary official acknowledgment has been applied to a President, from President Reagan to President Obama to President Trump. The author reaches the conclusion that courts have inconsistently applied the official acknowledg-ment to Presidents and that the unique position of the President as the elected Commander-in-Chief makes the existing unsuitable for application to the Chief Executive. The proposed presidential acknowledgment redresses these issues and better fits the purpose of the FOIA statute as amended by the FOIA Improvement Act of 2016. The article further mulls the implications of transpar-ency issues on the fake news phenomenon and how more transparency, achieved by applying the proposed presidential acknowledgment test, would help promote the informed citizenry necessary for a healthy democracy.