Well, that was quick. Just a day into his new administration, President Obama issued a pair of memos and an executive order all aimed at increasing government openness. The Washington Post reports:
Obama reversed George W. Bush's restrictions on access to records of former presidents. He also told the Justice Department to write new guidance to agencies on the Freedom of Information Act (FOIA) to improve transparency, and gave top officials in his administration four months to create a new "Open Government Directive" that he said would go beyond the requirements of the open records law.
The Associated Press writes that Obama's executive order completely undoes an order that President Bush signed in the aftermath of 9/11, granting past presidents broadened executive privilege to prevent the release of their White House papers. The AP writes that Bush's order had been seen "as ushering in a new era of presidential secrecy."
The two memos Obama signed go further in ushering that new era back out the door. The FOIA memo, citing Justice Brandeis' statement that "sunlight is said to be the best of disinfectants," orders federal agencies to "act promptly and in a spirit of cooperation" when responding to FOIA requests made by the public. Further, the memo orders the adoption of "a presumption in favor of disclosure."
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.
Meanwhile, the Transparency and Open Government memo calls for the development of an "Open Government Directive" to be followed by executive departments and agencies. The memo says the directive is meant to promote transparency and public participation in government, and cites in particular the importance of "harness[ing] new technologies to put information about their operations and decisions online" and getting the public "to participate in policymaking and to provide their Government with the benefits of their collective expertise and information."
On the whole, this all sounds great, and certainly, the open-government advocates are pleased. The Washington Post's Federal Eye blog cites Ellen Miller of the Sunlight Foundation, who said "I’m pretty damn pleased that the issue of transparency in government is such a high priority for the new administration," although she noted the irony that the memos are not yet available on the White House website. Tom Blanton, director of the National Security Archive, an independnent nonprofit that collects and publishes declassified government documents, was similarly upbeat:
"This is the earliest and most emphatic call for open government from any president in history," said Archive director Tom Blanton. "President Obama has reversed two of the most dramatic secrecy moves of the Bush initiatives, one that told agencies to withhold whatever they could under FOIA and the other that gave presidential heirs and vice presidents the power to withhold presidential records indefinitely."
But not everyone is celebrating just yet. Herb Strentz of the Neiman Watchdog Journalism Project (which, like the CMLP, is hosted by Harvard University), writes that "We've been here before."
Still, Strentz notes that Obama's revocation of Bush's limitation of access to presidential records is "of far more substance than the promise to be more open" and bodes well.
When the Clinton administration came in, his attorney general, Janet Reno, issued the same kind of marching orders in 1993 that the Obama administration issued today, reversing the “don’t disclose” polices of the George H.W. Bush and Ronald Reagan administrations.The intentions were laudable, as they are today. But not much changed. That’s because the people in the trenches, including longtime civil servants, figure they know how to run their offices better than a short-term presidential administration. Those who had been open continued to be so; those of a more secretive bent continued to be so. Policies don’t always transfer into practice.
The Columbia Journalism Review notes that the government's accommodation of the FOIA has "yo-yoed" between administrations. Clinton Attorney General Janet Reno's memo encouraged compliance with FOIA requests, while Bush Attorney General John Ashcroft's memo advised agencies "to search the full reach of FOIA exemptions before releasing requested records, a signal that many interpreted as license to deny worthy requests as long as a technical excuse for a denial could be found." But, CJR adds, there's reason to believe that this new FOIA memo might stick: it was signed not by Obama's as-yet-unconfirmed attorney general, Eric Holder, but rather by Obama himself.
Rolling back Obama’s new executive directive on FOIA will be harder, if only because it’s a step that would bring far greater attention. “This is something he wants the next president to have to rescind,” says [David Vladeck, a law professor at Georgetown]. “He takes this very personally, and he wants his name on this, not Eric Holder’s.”
CJR adds that with his memo, "Obama has struck a quick and prominent victory for government openness. Let’s hope it’s one of many to come." Speaking as a part-time journalist myself, amen to that.
(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern.)