Out Of The Shadows
New administration offers hope for more freedom of information
WASHINGTON—On his first full day in office, President Obama opened the curtain on the federal government wider than it had been opened in eight years.
And in the days since, his administration has tried, on occasion, to pull it shut again.
Perhaps that should be no surprise. After all, government secrecy is as old as government itself, and old habits are hard to change.
But Obama’s easing of restrictions on the Freedom of Information Act, the landmark legislation that opened most government records to the public’s eyes 42 years ago, and his administration’s actions since, have set the tone for the fifth annual Sunshine Week.
Launched by the American Society of Newspaper Editors in 2005, Sunshine Week is a national effort to inform the public about the importance of open government and the free flow of information.
This week, newspapers across the country will once again sponsor panel discussions and Webcasts and op-eds pushing the American ideals of a free press and citizen access to the inner workings of government.
They do so in a much different environment than in past years—one in which the government is opening itself up a bit at least, at a time when technology is fast changing how information is gathered and shared.
Obama signaled a vast change in government openness in a memo to his executive departments on Jan. 21.
The new president ordered the Justice Department to draw up new guidelines for administering the Freedom of Information Act to replace the much-criticized “Ashcroft memo.”
Issued by then-Attorney General John B. Ashcroft in 2001, that memo says the Justice Department will defend an agency’s decision to withhold records “unless they lack a sound legal basis or present an unwarranted
risk of adverse impact on the ability of other agencies to protect other important records.”
Obama’s order turns the Ashcroft memo on its head.
“The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails,” Obama said.
“The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of government officials at the expense of those they are supposed to serve.”
Hearing that, advocates of an open government were thrilled. Several dozen groups, ranging from the American Civil Liberties Union to the National Freedom of Information Coalition to Transparency International, wrote an open letter praising the president’s actions.
“President Obama has demonstrated global leadership on this issue, signaling the fundamental importance of open government in a democracy,” the letter said. “We call on governments around the world to take similar action to promote transparency and respect for the right of access to information.”
The Obama memo essentially returns the federal government to the presumption of openness that existed before the Bush administration, said Charles Davis, executive director of the National Freedom of Information Coalition.
“It’s a 180-degree reversal from what was a complete aberration,” said Davis.
In addition, several days after taking office, Obama sent another memo to federal departments, directing them to increase the amount of information they make public without the prod of a Freedom of Information request, said Patrice McDermott, director of Openthegovernment.org.
Obama also has set up a Web site, recovery. gov, where data about federal stimulus spending will be posted. And he’s lifted the ban on news media coverage of the ceremonies honoring the fallen war dead when their remains arrive back in the United States. The president “seems to see government transparency as something more than FOIA,” Davis said.
On other occasions, though, the Obama administration has shown some signs that its actions on government openness issues may not always match the president’s stirring words.
Several times since Obama issued that statement, the Justice Department has opposed delaying freedom of information lawsuits until the new FOIA standards are fully in place.
In one instance, Justice Department attorneys told a judge that it “is not clear that the new guidelines, once issued, will be retrospective to FOIA requests that the agency already has finished processing,” according to the Associated Press.
And on top of that, in a federal appeals court, the Obama Justice Department last month defended the Bush administration’s use of the State Secrets Act to end a lawsuit by former CIA detainees who say they were flown to other countries and tortured in pursuit of information helpful to the war on terror.
White House counsel Gregory B. Craig defended the administration’s actions, telling the New York Times: “Every president in my lifetime has invoked the state secrets privilege. The notion that invoking it in that case somehow means we are signing on to the Bush approach to the world is just an erroneous assumption.”
Yet the Obama administration’s stance on the state secrets issue came as a huge disappointment to Anthony D. Romero, executive director of the ACLU.
“This is not change,” Romero said. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue.”
But other open-government advocates, such as Davis, stress that the State Secrets Act offers necessary protections that help protect important information.
“It would be foolish to take that tool and throw it on the ground here,” Davis said.
The Obama administration’s full record on open government issues will only reveal itself over time, said Gene Policinski, vice president and executive director of the First Amendment Center.
“The overall tendency has been for the president to come into office espousing more open government, but neither Democrats nor Republicans have covered themselves in glory by the time their administration ends,” Policinski said.
Nevertheless, advocates of openness already are listing potential agenda items for the administration and the nation.
For Davis, one top issue is passing a bill reforming the Freedom of Information Act to broaden the amount of information that it makes available.
A bill signed into law about a year ago was largely procedural in nature, and did not take into account big issues such as the current law’s privacy exemption — which, according to Davis, is “interpreted so unbelievably broadly” in order to keep government information secret.
Davis and others also advocate encouraging government at all levels to make more information available online, without the hassle of a Freedom of Information request.
“Online access to public records is the next battleground for Freedom of Information advocates,” said Andy Alexander, ombudsman at the Washington Post and co-chairman of the American Society of Newspaper Editors’ FOI Committee. To prepare the battleground, Sunshine Week organizers are studying the public records that states make available on their Web sites. At the same time, openness advocates are surveying local government Web sites as well as those online at the federal level.
And Openthegovernment.org, along with the Center for Democracy and Technology, has conducted a survey on the “most requested documents” that the federal government should make available on the Web.
While the survey results will be released this week, top candidates include Congressional Research Service reports, usage of the USA Patriot Act and complete data about where financial bailout funds have gone.
All this comes at a time when one of the most reliable users of such information — the mainstream media — finds itself in a life-and-death struggle to find a way to survive in the Internet era.
Thanks to journalism job cuts, “there are simply not as many cops on the beat, and that’s going to be a problem,” Alexander said. “There’s also a concern about a corresponding lack of resources in fighting for public information in court.”
Policinski agreed.
“It would be a terrible irony to live in an era when government was more open and, because no one was there to interpret the information, the public gets less information than it did before,” he said.
But Davis noted that journalists are not the top users of the Freedom of Information Act. Average citizens are — and that’s why Sunshine Week is not just an inside-baseball issue for the media elite.
With the Obama administration promising a more interactive, participatory democracy, the public likely will have new ways to get involved and new ways to hold the government accountable, good-government advocates said.
And that means an entirely new era for people who have spent much of the past few years fighting ever-tighter controls on the public’s right to know.
“We’ve been so focused on pushing back the bad stuff that it’s just in the past year that we’ve started to focus on the good stuff,” McDermott said.
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