New White House Transparency Policies Draw Mixed Reviews

As he entered into his second full year in office, President Barack Obama continued to introduce new measures he said were intended to increase government transparency. But some critics maintain the administration's changes do not do enough to stem entrenched practices of federal government secrecy.

White House Office Releases Open Government Directive

On Dec. 8, 2009, Peter Orszag, the director of the Office of Management and Budget (OMB), released an Open Government Directive memorandum instructing all cabinet-level departments and agencies to increase transparency by following four general policies: publishing information about their departments online, improving the quality of government information, creating and institutionalizing a "culture of open government," and creating policies that maximize the potential of technology to enhance government transparency.

The directive was issued as a follow-up to the Memorandum on Transparency and Open Government issued by Obama on Jan. 21, 2009, in which the president ordered the director of the OMB to create a directive that "instructs executive departments and agencies to take specific actions" in implementing open-government policies. (For more on Obama's previous open government directives, see "Obama's Policies Promote Openness; Some Secrecy Persists" in the Spring 2009 Silha Bulletin, and "Obama Promises More Government Openness; Skeptics Demand Immediate Results" in the Winter 2009 Silha Bulletin.)

Orszag's directive instructed each federal agency to choose at least three collections of "high value" undisclosed government data, and make them available online by January 22. The directive said that posting the collections online would increase accountability and improve the public's understanding about the individual agencies' missions. These "high value" collections were published on the data.gov website on Jan. 22, 2010, in compliance with the directive. According to a January 22 report from the Sunlight Foundation, 24 departments and agencies published 300 collections by the due date.

Orszag also ordered each federal agency to create "an Open Government Webpage located at http://www.[agency].gov/open to serve as the gateway for agency activities related to the Open Government Directive" within 60 days. The memo stated that the websites must include a mechanism for the public to provide feedback and input "about which information to prioritize for publication." The directive also required that each agency publish an annual "Freedom of Information Act Report in an open format" on its Open Government page.

The directive included other instructions specifically designed to accommodate the Freedom of Information Act (FOIA), 5 U.S.C. § 552, such as requiring agencies to "proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA," and to take steps to reduce any backlog of FOIA requests by 10 percent annually.

OMB Watch, a nonprofit research and advocacy organization that promotes government accountability, offered tentative praise for the directive in a Dec. 8, 2009 press release, saying that the "proof is in the pudding."

"Implementation over the next few months will reveal how much new transparency we will actually receive from this process,"said Sean Moulton, OMB Watch's director of federal information policy, according to the release. "This first step, the instructions to the agencies, has gone well, now our work must focus on ensuring the next step, implementation by agencies, goes equally well and produces substantive change."

In a Dec. 8, 2009 press release, Rick Blum, the coordinator of the Sunshine in Government Initiative, a coalition of media groups promoting open government, expressed concern that the directive did not provide enough specific instruction to the agencies, or provide a plan to pay for the enhanced transparency measures. "Today the White House released a 'roadmap' for transparency, but how agencies respond is where the rubber hits the road," Blum said, according to the statement.

Danielle Brian, executive director of the Project on Government Oversight, said in a January 28 Washington Post story that much of the "high value" information posted by federal agencies on the

data.gov website in response to the directive was relatively insignificant, such as the Department of the Interior's publication of population counts for wild horses and burros.

"I'm sure there are curators who want that list, but I want to see information on oil and gas leases," Brian said. "We're interested in the information that will hold the agencies accountable."

Obama Issues Declassification Order

On Dec. 29, 2009, Obama issued an executive order to create "a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism." The order, Exec. Order No. 13526, 75 C.F.R. 707 (2010), created new classification standards and limitations, and also introduced new policies for declassifying documents, including automatic declassification for most records more than 25 years old.

The order also established a National Declassification Center "to streamline declassification processes, facilitate quality-assurance measures, and implement standardized training regarding the declassification of records determined to have permanent historical value."

"No information may remain classified indefinitely," the order stated. "Information marked for an indefinite duration of classification under predecessor orders . . . shall be declassified in accordance with . . . this order."

In a Jan. 4, 2010 post on the Secrecy News blog, Steven Aftergood wrote that the Obama White House sought out and incorporated a "surprising" amount of public input in formulating the order, and that the order came unusually early in Obama's presidency. "Beyond the unparalleled degree of public participation in its development, the new Executive Order is the only such Order to be issued in the first year of a Presidential Administration," Aftergood wrote. "The last two Presidents issued their classification Orders in their third year in office."

Aftergood also noted that not all the changes enacted by the order were in the direction of increased openness. "Section 4.3 authorizes the Attorney General, as well as the Secretary of Homeland Security, to establish highly secured Special Access Programs, an authority reserved in the previous Executive Order to the Secretaries of Defense, State, Energy and then-Director of Central Intelligence," Aftergood wrote. "Sections 1.8c and 3.5g exclude material submitted for prepublication review from classification challenges and mandatory classification review."

Reports Show Transparency Problems Persist Under Obama Administration

Despite the Obama administration's purported attempts to increase transparency in government, a Jan. 27, 2010 Washington Post report indicated that little has changed since the presidency of George W. Bush in terms of FOIA lawsuits. The Post story stated that court dockets showed a slight increase in the number of FOIA lawsuits filed since Obama was sworn into office - from 278 in 2007 and 298 in 2008 to 319 in 2009.

Similarly, a March 15 Associated Press (AP) story reported that an audit of federal agencies by the National Security Archive "found a decidedly mixed record" of implementing the Obama administration's proposed agency changes. The AP reported that while 13 of the 90 agencies audited could document concrete changes to their FOIA practices, and another 14 had enhanced their training about Obama's "presumption of disclosure" instructions, 35 agencies said they had no record of putting the new Obama FOIA policies in place.

A March 16 AP story reported that federal agencies had actually increased their use of legal exemptions to keep records secret during Obama's first year in office. After reviewing FOIA reports from 17 major agencies, the AP found that the use of nearly every one of the FOIA's nine exemptions to withhold information from the public increased in fiscal year 2009.

According to the AP report, major agencies cited FOIA exemptions to refuse information at least 466,872 times in budget year 2009, compared with 312,683 times the previous year. The budget year runs through the end of October.

Norman Eisen, White House special counsel for ethics and government reform, responded to the report by saying that the Obama administration had spent the year building "the infrastructure to create a lasting change," according to the March 15 AP story. "It takes time to get an entire government to decide how we are going to change the culture," Eisen said.

Meredith Fuchs, general counsel to the National Security Archive, called the Obama Administration's record on transparency a "mixed bag," saying that the administration inherited many of its problems from past presidencies, and that some agency decisions to withhold records may be reflexive. "It's hard to shift the battleship," Fuchs said in the January 27 Post story.

Several other activities of the Obama administration in the early months of 2010 drew fire from open government advocates. In a February 8 column, Washington Post media columnist Howard Kurtz wrote that Obama has increasingly avoided directly addressing the White House press corps, instead choosing to promote his message through one-on-one television interviews and town hall-style meetings.

"It's a source of great frustration here," Chip Reid, CBS's White House correspondent, said in Kurtz's story. "It's important for us to hold the president's feet to the fire."

On February 19, the AP reported that when Obama met with the Dalai Lama, he closed the meeting to reporters and photographers.

Although the AP story noted that past presidents have also kept their encounters with the Dalai Lama generally private, Kelly McBride, the leader of the Poynter Institute's ethics group, said it was hard for the Obama administration to square its pledges of openness with the effort to control coverage of the Dalai Lama's visit. "That's not very transparent," McBride said, adding that the administration appeared to be trying to control coverage without completely stifling it. "Trying to control what people make of the images is a difficult task, and probably one of the easiest ways to do that is to limit the number of images."

The White House distributed photos of Obama with the Dalai Lama, but many news organizations, including the AP, refused to use the photograph. "Government-controlled coverage is not acceptable in societies that promote freedom," Kathleen Carroll, executive editor of the AP, said in the February 19 story. "And that is why we do not distribute government handouts of events that we believe should be open to the press and therefore the public at large."

The administration also faced criticism for continuing a fight to deny a journalist's request for the names of 9,200 individuals denied clemency by President George W. Bush.

"Pardon and commutation applicants have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency," the Justice Department wrote in a brief submitted on March 26, 2010, opposing the FOIA request by former Washington Post reporter George Lardner Jr. "The substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names."

In July 2009, a Washington D.C. federal district court judge ruled in favor of Lardner in Lardner v. Dep't of Justice, 638 F. Supp. 2d 14 (D. D.C. 2009) and ordered that the list of rejected applicants be made public. The Justice Department appealed the ruling.

- RUTH DEFOSTER

SILHA RESEARCH ASSISTANT

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This page contains a single entry by cla published on June 7, 2010 2:05 PM.

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