From the Winter 2010 issue of The News Media & The Law, page 12.
To open-government advocates, President Barack Obama’s first day in the Oval Office seemed like a good start. He signed an executive order and two presidential memoranda that, among other things, reversed the Bush administration’s changes to the Presidential Record Act, restored a presumption of openness when responding to Freedom of Information Act requests, instructed his then-unconfirmed attorney general to issue new FOIA guidelines and told agency heads they would be working together to improve transparency.
At the time, Tom Blanton, the director of the nonprofit National Security Archives, called it “the earliest and most emphatic call for open government from any president in history.”
But as Obama issued his directives and Blanton praised the administration’s commitment to transparency, the Justice Department that same day filed a motion to dismiss a lawsuit brought by the National Security Archives and Citizens for Responsibility and Ethics in Washington, which sought the recovery and preservation of millions of missing Bush-era e-mail messages.
“President Obama on Day One ordered the government to become more transparent, but the Justice Department apparently never got the message, and that same day tried to dismiss the very litigation that has brought some accountability to the White House e-mail system,” Blanton said in a subsequent press release. “The White House e-mail presents a high-level test of the new Obama openness policies, and so far, the grade is at best an incomplete.”
Though the White House eventually handed over millions of e-mail messages to settle the suit, it was an indication on day one that the administration might have some difficulty making its rhetoric a reality. In the year that has passed since, its success has been mixed.
Media shield bill, Open Government Directive get high marks
Obama’s support of the proposed federal shield bill wending its way through Congress and his emphasis on releasing data to proactively promote transparency were two issues on which open-government advocates say the administration’s commitment translated into action.
Though Obama — who co-sponsored a proposed shield bill when he was in the Senate — stunned shield law advocates in October when his administration told Congress that the proposed legislation should contain a new broad national security exception, he quickly righted course. Attorney General Eric Holder and Director of National Intelligence Dennis C. Blair signed a letter in November that supported the legislation pending in the Senate. It was the first presidential endorsement of federal shield legislation and the bill’s progress was again on track. The Senate Judiciary Committee in December voted to present the federal media shield bill to the full Senate after months of being tabled, debated and amended in the committee.
“This legislation provides robust judicial protection for journalists’ confidential sources, while also enabling the Government to take measures necessary to protect national security and enforce our criminal laws,” the letter read, assuaging national security fears.
Obama’s memorandum on transparency and open government also earned high marks for its intended effect. It directed the nation’s chief technology office, which was then a new and unfilled position, to work with the director of the Office of Management and Budget to draft an Open Government Directive within 120 days. Though the endeavor ran a bit behind schedule — Aneesh Chopra was confirmed in August and the directive was issued three months later in December — journalists say it was a commendable effort.
“I think the whole point — to get agencies thinking about their data publicly — is wonderful,” said Jennifer LaFleur, a computer-assisted reporting specialist at ProPublica. “It’s going in the right direction, but there might be some good places to add clarification on what that really means.”
The December directive established key deadlines for agencies to make data available online. By Jan. 22 each agency was to post three “high-value data sets.” By Feb. 6 each should have its own open-government Web page. For the most part, agencies have complied. (According to LaFleur’s data at press time, 27 of 64 independent agencies had yet to create Web pages. The White House says the directive applies to the 24 largest agencies plus five departments within the Executive Office of the President, which have all complied. )
When it comes to online data, the devil seems to be in the details. Though agencies are largely meeting or beating the directive’s deadlines, their methods for selecting and preparing data to post are unclear. Amy Fuller Bennett at OpenTheGovernment.org says high-value data sets were left largely undefined, which means people may not even want the information that’s made available. “It was described by an administration official as something that helps the agency accomplish its goals, and that’s fine if that’s one criteria, but we think it also needs to be valuable to the public,” she said.
LaFleur pointed out that whether the data is uploaded in a format that’s easily usable is another consideration. “All along these directives have made a big deal about making this accessible to regular people . . . my mom doesn’t know how to convert a PDF into an Excel spreadsheet and I assume most people don’t either.”
Journalists hope the next step — establishing incentives to promote openness — will help the message trickle down from the White House throughout the agencies.
“[The posted data] wasn’t the sort of family jewels people were hoping for,” said journalist Clint Hendler, who covers transparency issues for the Columbia Journalism Review. “But what they’re trying to do, that’s a really monumental task. . . . If this is the start of a new culture of making data available, then I think we’ll look back and say this was great.”
Public records litigation, state secrets leave room for improvement
The administration’s stance on the state secrets privilege and its approach to public records litigation received more mixed reviews. Though Holder issued two laudable memoranda — one saying the Justice Department would scale back its use of the state secrets privilege and another restoring a presumption of openness that governs public records requests — those involved in litigation against the government say that implementation has fallen short.
Holder in September said the Justice Department would invoke the state secrets privilege, which allows courts to dismiss lawsuits if the government shows that trying the case could reveal state secrets, only to the “extent necessary to protect against the risk of significant harm to national security” and not for “the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.”
Though open-government activists expressed cautious optimism about the new policy, others point out that on one important state secrets issue the administration has remained mum. Congressional Democrats reintroduced legislation to curb the government’s use of the state secrets privilege when the administration invoked it early on in its first year, but thus far Obama has declined to endorse a plan to codify when the privilege can be invoked into law. “It’s very shortsighted of this administration or any other if they’re genuinely concerned about this privilege going forward,” Hendler said.
Litigation over denied public records requests also shows signs that the spirit in the administration’s directives have yet to trickle down to its actions in the courts. Despite Holder’s FOIA memorandum, which in March re-established a presumption of openness and instructed executive branch departments and federal agencies on how to respond to records requests, organizations mounting legal challenges say there has been little visible change in litigation tactics since the previous administration. The Washington Post reported in January that there were 319 FOIA lawsuits filed during Obama’s first year in office and that during the last two years of the Bush administration there were 278 and 298 respectively. (The White House disputed those numbers, saying Justice Department counts differed and that some cases were likely mislabeled. Furthermore, administration officials said the number of lawsuits filed over the course of one year is not indicative of its commitment to transparency.)
The administration’s continued attempts to use the Presidential Records Act to exempt White House visitor logs from FOIA have been detailed in several high-profile lawsuits. In September, the administration settled four lawsuits brought by Citizens for Responsibility and Ethics in Washington over visitor logs by handing over names of health care and coal executives and agreeing to post logs online 90 to 120 days after visits occurred going forward. Because the agreement was reached as a settlement, however, it is a voluntary policy that allows the White House to exempt records of so-called sensitive meetings, which is a largely undefined category.
As the ink on that settlement dried, another watchdog group, Judicial Watch, proceeded with a suit over similar visitor log denials. That matter is ongoing.
“The bottom line is that the legal question of whether or not these records are accessible under FOIA is unsettled or somewhat in limbo,” Hendler said. “It’s settled in the district court, but the White House continues to refuse to acknowledge it.”
Kurt Opsahl at the Electronic Frontier Foundation has been suing the government for records related to its warrantless wiretapping program since 2006. First the organization filed suit against the telecommunications companies that cooperated with the government. Then, after the Foreign Intelligence Surveillance Act was amended to give the companies “explicit immunity from civil suit,” the group filed a FOIA request with Department of Justice and Office of the Director of National Intelligence to uncover the identities of lobbyists who advocated for passage of the amendment.
Many documents were held back from EFF’s request and large amounts of information — including the identities of telecommunications lobbyists — was redacted from those that were produced. Opsahl says there was a “flurry of activity” as the Obama administration decided whether it would appeal the documents’ court-ordered release, which it did. The U.S. Court of Appeals in San Francisco (9th Cir.) said on Feb. 9 that the lobbyists’ identities should be disclosed so long as they are not protected by the presidential communications privilege or other legal grounds and told the lower court to consider the case in light of its ruling.
One day after Obama’s first State of the Union address, which emphasized lobbyist disclosure, Opsahl said he would like to see that message reflected in the government’s pursuit of an appeal. “I would be delighted if the Obama administration really implemented this policy he spoke about, dropped the appeal and released this info, but I’m not holding my breath,” he said.
No public records lawsuit outcome likely disappointed open-government advocates more than the Obama administration’s flip-flop on photos depicting abuse at the Abu Ghraib prison in Iraq. The American Civil Liberties Union first requested the images of detainee abuse, some of which were leaked to the press, in 2003. A district court and the U.S. Court of Appeals in New York City (2nd Cir.) both rejected the government’s argument that it could withhold the images under a FOIA exemption and ordered the photographs released. In April, the White House said it had reached an agreement with the Defense Department to release the photos in May. But three weeks later, Obama reversed course and said he would ask the U.S. Supreme Court to block the court-ordered release.
The push to withhold the photos came from U.S. Sens. Lindsey Graham, R-S.C., and Joseph Lieberman, I-Conn., who first wrote letters to the White House urging a high court appeal and then introduced the Detainee Photographic Records Protection Act, which sought to exempt photos of detainees in U.S. custody abroad from release. The FOIA amendment, which was inserted into a Homeland Security Appropriations Bill, passed both the House and the Senate and was signed into law in October. The Supreme Court then vacated the court-ordered release of the photos and sent the case back to the lower court for review under the new law.
“It’s disappointing, given President Obama’s commitment to transparency at the outset of his administration, that the administration came in working with Congress to essentially reverse the courts’ rulings regarding the detainee photos,” Sophia Cope, legislative counsel for the Newspaper Association of America, said when the law passed.
One year in, open-government advocates say that while the Obama administration’s stated commitment to transparency is promising, there were still missed opportunities. Technology doesn’t necessarily equal transparency. Memoranda don’t always result in action. To truly establish a transparent government, the administration will need to make sure its first year is a foundation on which a continued effort toward open government can be built.
“There’s been a lot of information released that probably wouldn’t have been in the last administration — but there are also things that have run counter to the promises of transparency within the administration,” LaFleur said.