Opening up shop

From the Winter 2009 issue of The News Media & The Law, page 5.

The Day One directives from the White House on transparency in government seemed to be the turning of the tides that the good-government community was waiting for. Having worked for months to promote those issues with the presidential transition team, to see results on that first day set a crucial tone.

One of the first orders of business for President Obama on Jan. 21 was to meet with his senior staff and discuss major policy changes. Among those changes — including halting U.S. military tribunals at Guantanamo Bay, Cuba, and freezing salaries of executive staff — three concerned strengthening the public release of government information.

A memo entitled “Transparency and Open Government” sets forth Obama’s goal to create “an unprecedented level of openness” in the federal government. It encourages transparency to promote a more collaborative and participatory governmental process. A second memo on the Freedom of Information Act restored a presumption of disclosure of government information, reversing the Bush White House’s tendency toward secrecy under the law.

Obama also issued an executive order revoking a Bush policy that had allowed ex-presidents and vice presidents to keep their records secret longer than the 12 years allowed by law. His administration revamped the White House’s Web site, promising increased public content, and changed the way www.whitehouse.gov indexes its content to allow more search engines to turn up results within the site.

Government transparency advocates began working on ways to push for a more open executive branch well before the election last November and ramped up their efforts throughout the transition. They had expressed optimism that a culture change was to come, but even they were somewhat surprised to see such a tone set on that first day.

“I was hoping for something like that,” said Sean Moulton, the director of federal information policy for the nonprofit OMB Watch. “But given the enormous issues facing the president, especially the economic difficulties, I don’t think I or anyone was expecting something on Day One.”

OMB Watch works on government transparency and accountability issues primarily related to budgeting; it initially formed to provide oversight on the Office of Management and Budget.

Given all Obama wanted to address on that first day, Moulton said, that he made a point to work in transparency issues sent a “clear message.” And although the two presidential memos don’t quite carry the same weight as an executive order might, they still furthered the point from Obama that he intends his administration to be “the most open and transparent in history.”

It falls to Obama’s White House to ensure that message trickles down to even the lowest levels of government to ensure a true change from the culture of secrecy of the last eight years. As the administration moves toward a more open government, transparency advocates are hopeful it will continue to draw on suggestions from them and the public.

How can we help?

Obama’s transparency initiatives didn’t come out of the blue. As the 2008 campaign season headed into the homestretch, open government groups began meeting to determine the best ways to guarantee more transparency no matter which candidate ended up at 1600 Pennsylvania Ave. Many formed coalitions to prioritize particular issues and planned to recommend them to the as-yet-undetermined transition team.

OMB Watch presented the administration with results from its two-year 21st Century Right to Know Project. Dozens of groups, including good government organizations, library associations and the Reporters Committee for Freedom of the Press, worked on the project with hundreds of archivists and regular citizens throughout the country, resulting in a thorough 112-page set of recommendations for whichever administration ended up in the White House.

“There was a realistic expectation that things were going to change and change for the better,” Moulton said, regardless of which candidate won. The project’s report was circulated among both campaigns, he said, before being finalized and eventually sent to the Obama transition team.

The message to the Obama camp was that it should immediately use the inaugural address to give the message that it will promote an open and accountable government, and then work on four other specific points within the first 100 days of the presidency. In particular, the report advised, Obama should instruct agencies to operate more openly; invite the public to point out documents that should be released; remove impediments to access to presidential records; and require the attorney general to return to a presumption of openness under FOIA.

Moulton was pleased at the degree to which Obama’s actual Day One messages addressed his groups’ concerns. He hopes the memos will open the door to additional opportunities for groups like his to weigh in on policies as they are developed.

The National Security Archive, a nonprofit research group, also issued three proposals to the Obama administration shortly after Election Day. Along with 60 other groups, including the Reporters Committee, the Archive asked Obama to issue a FOIA memo that “establishes a policy of maximum possible public disclosure of government records”; revoke the Bush order on presidential records; and reject prior “abuses of the classification system” and reduce future classification.

Another coalition to issue recommendations and meet with the transition team was the Sunshine in Government Initiative — a coalition of nine media groups including the Reporters Committee that promotes accessible, accountable and open government. The media organizations asked the Obama administration to focus its efforts on four steps early in the presidency to “strengthen open government to counteract years of growing government secrecy.”

Specifically, SGI wanted the administration to restore the presumption of disclosure across the executive branch. Obama should create an independent online ombudsman for citizens to use in accessing government, SGI said, and ban agencies from adding additional unnecessary exemptions to FOIA. Finally, he ought to speak to reporters on the record about policy and other public matters.

Reporters who cover the federal government, like Sean Reilly with the Mobile Press-Register, were also keeping an eye on transparency.

“To me, it was a major issue. During the campaign I looked for statements by both candidates on what their attitude toward government openness and particularly FOIA would be,” Reilly said.

Reilly has been covering the federal government in Washington since 2000 and has frequently used FOIA to request records related to issues his readers in Alabama care about.

“For someone like me at a mid-level paper without access to high-level sources, FOIA is extremely important because it levels the playing field,” he said. “Reporters at The New York Times are likely going to get the same sort of response to a FOIA request as someone at a regional paper like me.”

Because “both McCain and Obama had reasonably good records” on transparency issues going into the campaign, Reilly was hopeful the tendency toward secrecy would change no matter who was elected.

“As someone who has used FOIA since I’ve been in Washington, I have noticed a steady decline in responses and in what is disclosed under FOIA,” he said. And when Reilly has obtained records under the law, he said, “I had some good stories early on that I got that I suspect would be withheld up until recently.”

Reilly may be right — records that were withheld under the Bush administration may not be kept from the public under Obama’s watch — but as he noted: “The question now is whether that will translate into policy down the road for federal agencies. Just because the president says ‘open the government’ does not mean it will happen.”

Message received

The president effectively told the world on that first day that he was going to open the government. While Washington was still attempting to put itself back together after a whirlwind inauguration weekend, Obama’s Day One announcements left SGI Coordinator Rick Blum “stunned.”

“I can’t imagine he could have done more on his first day,” Blum wrote in a listserv message to investigative reporters. In a statement he added, “On open government, the dawn is breaking.”

The transparency memo expressly gave the director of the Office of Management and Budget 120 days to come up with recommendations for the executive branch agencies to implement to further the transparency goals. Presumably, based on the memo, that will include ways to “solicit public feedback” and input, proactively “put information about [agency] operations and decisions online” and offer “increased opportunities to participate in policymaking.”

The memo addressing FOIA instructed Obama’s then-unconfirmed attorney general, Eric Holder, to issue guidelines to the agencies on FOIA. Attorneys general have historically issued these memos in the first months of a presidency. Along with direction from a president, they set the tone for the way FOIA will be interpreted and implemented.

But Obama’s FOIA memo didn’t put a clock on the action it directed. Bush’s first attorney general, John Ashcroft, issued his FOIA memo in October of 2001. Open government advocates and reporters are hopeful it won’t take so long for Holder’s memo to come out.

“I think they know what they want to do so they will just get it done,” Moulton said. “Based on my instincts, I think it’s going to be a bold FOIA memo — one of the boldest seen in awhile.”

“Clearly he set the bar pretty high. I don’t even think just going back to Reno would address what he directs,” Moulton said, referring to the memo issued by former Attorney General Janet Reno during the Bill Clinton presidency that directed agencies to presume disclosure of records unless it was necessary to keep them from the public.

The FOIA memo also instructs the OMB director to help the agencies find ways to use new technologies to “increase and improve information dissemination,” which has been something of a touchstone throughout Obama’s campaign and transition.

The Web site the Obama administration used throughout its transition, www.change.gov, posted information on the meetings it held with outside groups as well as any materials or recommendations provided by those groups.

And of course, if Obama’s slight obsession with his Blackberry is any indication, using technology will remain a major priority throughout his administration and will likely come into play with release of information.

“There’s a lot they can do,” Moulton pointed out noting the government’s notorious avoidance of technology through contracting out those types of projects and services. “Across the board they need to rebuild their own abilities.”

Until Holder’s memo or any others materialize, as Reilly pointed out, it remains to be seen whether Obama’s message will “translate into policy.” Even so, he said, “I’ll err on the side of optimism and file more requests.

“To be honest, I’ve slacked off in the last six months because they just have not been yielding a lot. But I hope the executive agencies take heed of the [memo] and will be more responsive.”

Obama’s Day One memos and executive order related to transparency can be found at www.whitehouse.gov/briefing_room/executive_orders/.