Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
We’re either on the verge of a new era in transparency in the federal government — or we’re not.
On just his first full day in office, Jan. 21, President Barack Obama pledged that the public would have more and easier access to official records and information in his presidency, saying federal agencies should live up to the Freedom of Information Act by presuming records open unless there’s good reason to close them.
On Dec. 8, the administration issued a directive that each federal department and Cabinet-level agency must post online within 45 days at least three new sets of high-interest information not previously available, and must create a Web page within 60 days outlining how it intends to live up to open-government regulations. Within 120 days, each must have an open-government plan completed and available to the public for comment.
The plan — if carried out — will go a long way toward improving the thus-far lukewarm rating Obama has gotten from freedom of information advocates.
On the plus side of the FOI ledger, even before the latest directive, the administration developed a Web-based disclosure of the details of the government’s massive economic stimulus package (www.recovery.gov). And Obama relaxed rules that had blocked news coverage of the return to the U.S. of the remains of military service members killed overseas, rightly leaving it up to family members to decide whether to allow it.
On the negative side, freedom of information advocates note there initially was no disclosure of the details of the so-called Cash for Clunkers program; when records were finally released, they showed the program was much less successful than hoped in taking gas-guzzling old cars off the road. It took the threat of a lawsuit to obtain the names of outside participants in the White House discussions leading up to Obama’s massive health-insurance reform package — reminiscent of Bush administration stonewalling on discussions about oil-drilling policy. And the administration has continued the Bush administration’s opposition to full disclosure on certain policies regarding the war on terrorism, including the jailing of suspected terrorists overseas.
Just last week, 11 journalism organizations demanded that the Food and Drug Administration end its requirement that journalists and all FDA employees obtain an official OK before an interview, and that a public information officer be present.
For watchdog groups on freedom of information issues, there is a wait-and-see attitude about the new Obama initiative. They recall that in 2007, President George W. Bush issued a Freedom of Information order on openness, and that some agencies simply failed to live up to it. Others note that the “new” data to be posted may simply be information already available in one format, but then posted in another.
The real challenge ahead is reversing decades of increasing secrecy across a range of local, state and federal agencies, and bureaucratic roadblocks to obtaining information under existing “sunshine” laws. In its 2009 report card on federal practices, the group OpenTheGovernment.org reported a slight decrease in the creation of official secrets in the last year of the Bush administration, but it was not able to track a corresponding rise in public disclosures. Long-term, the trend — through Democratic and Republican administrations alike, for decades — has been to provide less information to citizens, particularly in areas involving national security.
Change to more-open practices doesn’t come easily to bureaucrats. A Dec. 7 federal “open government” meeting in Washington, D.C., for employees working in freedom of information areas, was — of all things — closed to the public. The rationale was the same as so often is given for excluding citizens: Organizers “wanted government employees to be able to speak candidly.”
Apart from the fact that these were government employees meeting in a public building to discuss public business, those organizers ought to have considered this candid observation, offered by one high administration official: “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”
A ringing endorsement indeed for transparency and disclosure – and a direct quote from President Obama’s Jan. 21 promise of a “new era of openness.”