From the Fall 2008 issue of The News Media & The Law, page 24.
When the new presidential administration begins unpacking at 1600 Pennsylvania Ave. in January, it will bring plenty of its own plans and policies along. There will undoubtedly be some continuation of policies laid out by the Bush administration — it’s not like nothing good has come out of the last eight years — but it would seem there should be more of a focus on cleaning up the messes left behind.
One major mess that needs attention is the attitude government takes toward transparency and accountability. It’s time to bring back a presumption of disclosure of public information — not exactly something the last administration brought when it came to town in 2001.
At the outset, the incoming leaders must make clear from the top down that government officials are conducting the business of the public, on the public’s behalf. There should undoubtedly be a presumption of access to government documents, records, reports, meetings and anything else that’s done in the public’s name, government-wide.
It must be the exception rather than the rule to withhold public information from the voting, taxpaying citizens of this country. And there must be a high threshold to justify such action.
The notion that government leaders know best and ordinary citizens have no business engaging in oversight of official actions or, god forbid, questioning them, needs to be packed up and sent back to Crawford, Tex. with the outgoing administration. The new president must encourage citizens to hold him and his government accountable for their actions — and availability of public records and documents is a key way to allow for that.
But the presumption of access alone isn’t enough. Citizens need assistance in gaining access to government records. The Freedom of Information Act, in its 43rd year, exists to serve the public. But with record delays, backlogs and denials, FOIA can sometimes fail to serve the purpose it was created to serve — and it ends up driving citizens who want government records straight to court.
The Office of Government Information Services is one “fix” that Congress has legislated; the new administration should take up the cause. OGIS would provide an impartial ombudsman to help the public access government records, with the hope of avoiding costly and time-consuming litigation.
Even so, OGIS is not enough. The new administration needs to create an office or committee whose sole purpose is to restore the effectiveness of FOIA. The U.S. is no longer seen as the world leader in terms of making transparency a priority. This needs to change.
It should fall to our government to track and monitor FOIA and its effectiveness in actually responding to citizens and providing them with the records they request. Recently, government oversight groups such as the Coalition of Journalists for Open Government, Openthegovernment.org and the Sunshine in Government Initiative, as well as the Reporters Committee, have taken it upon themselves to provide that service, tracking delays, backlogs, disclosure and nondisclosure statistics and exemption usages.
While external oversight over government is imperative, that oversight should be in addition to the monitoring government does over itself — no such function currently exists within government and makes that data publicly available, and it absolutely should.
Another way government has used FOIA in opposition to its original purpose is by continually introducing broad, sweeping exemptions under the provision that allows lawmakers to place information required under new laws outside the bounds of FOIA allows other laws to set themselves outside the bounds of FOIA.
Often these exemptions — under Exemption 3 and often called “b3” exemptions for short (referencing the code section where they fall) — are duplicative and unnecessary and essentially provide blanket confidentiality.
Without requiring strict showings to mandate disclosure, b3s provide agencies with a shortcut to declare any record related to a particular statutory provision exempt from disclosure. This defeats the presumption of disclosure entirely and should be used only in those extreme circumstances when no other protections would apply to protect the appropriate records (they often do), and when the agency can show it is clearly in the public’s interest to have such a sweeping confidentiality provision.
Access to public records has taken a beating in the last eight years. We need government leaders who will not only say they support transparency — as both candidates have — but take immediate steps to prove it. A presidential directive, perhaps through an executive order, recognizing a presumption of disclosure for public records is a key first step.
Oversight and follow-up within executive branch agencies — perhaps with the newly created OGIS — are needed to ensure all agencies within government are adhering to the openness and access mandates. And it can’t stop there. Government leaders must continually conduct the public’s business in a transparent way, encouraging accountability and embracing public oversight.
If the new administration can pack all this up and send it to Pennsylvania Avenue in January, we just might be able to get things back on track.