Barely transparent

From the Winter 2010 issue of The News Media & The Law, page 1.

I’ve never thought it was fun, or even very productive to file request after request after request for records under the federal Freedom of Information Act. I don’t have the patience to wait month after month, or even year after year, for the feds to get me what I want. Yet I know there is no other law on the books that is as important to self-governance as FOIA.

Reporters who master the art of requesting and using public records are national treasures. We hear from many of them every year, usually when they’ve been told they can’t have information that clearly would benefit the public interest if it was released.

We heard from hundreds of reporters during the administration of George W. Bush. For eight years, they went through the motions of filing FOIA requests knowing that their chances of getting usable information were slim. The 2008 election was an opportunity for a new president to demonstrate that the public could be trusted with information collected and maintained by its government.

On his first day in office, President Barack Obama signed an executive order and two presidential memoranda that seemed to indicate that he values “transparency” — a government buzzword that, to me, means giving citizens the right to get information that demonstrates what public officials are doing in their name with their tax dollars.

It seemed the meetings with transition team members and federal officials charged with implementing FOIA might actually pay off. But the results have been disappointing.

I’ve lost count of the times in 2009 that I attended meetings with open government coalitions, White House officials and the new federal FOIA “ombudsman” at the Office of Government Information Services at the National Archives. After the first few conversations it became clear that the Obama administration views “transparency” as nothing more than a technology challenge.

Those in charge are largely techies from Silicon Valley who are no doubt brilliant. They want to get information out quickly and in huge data dumps. In fact, by Jan. 22 each federal agency was to post three “high-value data sets.”

In the 10 years I’ve been doing this job, not a single reporter has called for help in securing ‘high-value data sets” from the federal government. Rather, they are usually looking for a specific nugget of information they believe will help tell a story.

And here’s another problem with the Obama approach. No one at the White House, or in the entire administration as far as I can tell, is in charge of content. All the technology in the world is not going to help make government more transparent if specific information about government misbehavior, spending or activity is deemed to be secret.

Even if the Obama adminstration starts paying attention to content, it’s less than half the battle. The problems with federal FOIA are far more complicated.

Reporters who routinely use their state’s open records laws are usually astonished the first time they use federal FOIA. Systems of records that are clearly public when held by the states — lists of who’s in jail, for example — are secret under federal FOIA. Forget about asking the feds who they have in custody unless you already have the name.

You’d like to go to a federal agency to pick up a type of record that you’d clearly be able to pick up at city hall? File a FOIA request and wait 20 days to find out whether or not they’re going to start looking for it.

You’d like to know who got public money after a disaster? Forget about it. My rule of thumb is that if you’re asking for a record about a live human being that is held by a federal agency, give up all hope of getting it because the federal Privacy Act will be interpreted to prohibit its release.

Then there’s the biggest problem of all. Even when Congress amends FOIA to require agencies to be more responsive to public demands for information, they neglect to give them the money to carry out the mandate.

The Obama administration has only scratched the surface of government transparency. And I’m not holding my breath.