I never thought I would write the words: “I agree with Mitch McConnell.”
The U.S. Senate majority leader from Kentucky recently blocked a bipartisan resolution calling for the release of Robert Mueller’s full investigative report on the Senate floor. His rationale? Timing.
“It’s not unreasonable to give the special counsel and the Justice Department just a little time to complete their review in a professional and responsible manner,” McConnell had said.
Assuming that the senator is honest about this explanation, and his vote is not pretext for permanently blocking access, I agree with him.
Look, I’m just as eager as the rest of the American public to lay eyes on the culmination of Mueller’s investigation—and believe that the law will enable citizens to do just that.
However, having spent six years as the executive director of the Pennsylvania Office of Open Records and now handling public records cases around the country, I’m all too familiar with the legitimate time and effort sometimes required to pour over voluminous records and thoroughly review legal exemptions to disclosure. Mueller took two years to compile a report. The U.S. Department of Justice needs time to review the report to decide what portions of the report are and are not public.
This isn’t just a matter of common sense or bipartisan kindness, it’s a matter of federal code—which gets to the heart of my point. Like many other people, I watched the news shows on both sides of the ideological spectrum, listened to legal experts, law professors and journalists talk about the report. What I found most astonishing in this national conversation on transparency, is that no one speaks of the actual law that is the fulcrum for release of this record—the Freedom of Information Act.
In the hours of often belabored commentary about the report and the sound bites about commitment to “open and honest government” none of the talking heads on MSNBC, Fox and PBS, and the other networks—mentioned the 50-year-old law that actually mandates release of public records.
Congress endowed citizens with a statutory right, an enforceable right, of access to records housed within the executive branch of government. FOIA provides the public with the right to request access to records from any federal agencies.
The U,S. Supreme Court held that the law is designed to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”
In short, the justices said, FOIA is a means for citizens to know “what their government is up to.”
What that means is that any person can file a FOIA request to obtain the Mueller report. You don’t have to be a lawyer, a journalist or even have a reason for wanting to see the record. DOJ must respond to you in writing and must disclose requested information unless it falls under one of nine exemptions protecting interests such as personal privacy, national security and law enforcement, according to law. Agencies have 20 business days to respond—the legal reason I agree with McConnell regarding giving justice and Mueller time to review the record.
While the Justice Department may find certain components of the report permissibly withheld, wholesale withholding generally does not comport with the law. There’s a long history of the White House objecting to release of public records, wrongly citing national security interests—think Pentagon Papers, Abu Graib photos or the 9/11 report.
Any portion of the Mueller report that is rightly withheld, the government must explain why. The public should receive a line-by-line analysis and details of the types of documents or information being withheld along with an explanation as to how the material is exempt from disclosure.
In my view, the American people are legally entitled to obtain a copy of the report, but like the investigation itself, the process of disclosing the report must fall within the parameters of the law.
We are supposed to be a country of laws. Let’s follow the law on this one. Let’s take FOIA from principle on paper to actual practice and let it be a “means for citizens to know what their government is up to.” As the Supreme Court said—that phrase should not be dismissed as “convenient formalism.”
Terry Mutchler is the managing partner of Mutchler Lyons, the nation’s first transparency law firm devoted to helping media and corporations obtain public records in real time. She served as the founding executive director of Pennsylvania’s Office of Open Records and a board member of the National Freedom of Information Coalition. She can be reached at firstname.lastname@example.org