U.S. Open Government Policy: An Experiment in Transparency, Participation and Collaboration

19 March 2010

By Meredith Fuchs

On January 20, 2009, President Barack Obama pledged in his inaugural address, “[we will] do our business in the light of day.” The next day, President Obama began the first full day of his presidency with the issuance of two presidential memoranda and an executive order designed to start the process of making his “the most transparent administration in history.” He recognized at the time of the signing that “for a long time now, there has been too much secrecy in [Washington, DC].”

The series of first day issuances reversed several legal and policy decisions by President George W. Bush by restoring a presumption of disclosure in instances when federal records are requested under the U.S. Freedom of Information Act (FOIA) and eliminating a grant of authority to former vice presidents and the heirs of former presidents and vice presidents to block the release of historical presidential records on constitutional grounds.

The “Open Government Memorandum” issued on his first full day in office directed the beginning of a process that would reorient agency thinking about how to interact with the public. It set forth three policy goals for his administration – transparency, participation, and collaboration – to help return government to the people. It directed three senior officials to produce an Open Government Directive within 120 days. Advocates cheered President Obama’s actions and statements, delighted that he had listened to their urging during the presidential transition to make transparency a foundational principal of his administration.

In the months that followed, however, a series of decisions throughout the administration and long delays in progress caused many to question the Administration’s resolve.

State Secrets Privilege

One of the most criticized aspects of Bush Administration legal policy was the government’s increased use the state secrets litigation privilege to shut down a series of legal challenges concerning U.S. government rendition, warrantless surveillance, and detention practices. Although analysts differed on whether the state secrets privilege was being invoked more frequently or merely in a more broad-brush manner, there was no debate that it was a potent litigation tactic that prevented independent judicial review of the constitutionality of a series of Bush Administration policies. While the U.S. Department of Justice announced in February 2009 that it was reviewing its use of the state secrets privilege, the government nevertheless continued to advance legal arguments based on the privilege to gain dismissal of lawsuits. Over the course of several months, statements by the President and senior administration officials caused concern about the outcome of the state secrets privilege review. Eventually, in September 2009, the Department of Justice announced a new procedure to govern invocation of the state secrets privilege. The new procedure, although likely to imbue the decision to invoke the privilege with greater review and consideration, does not add any independent review to validate the decision. Moreover, it does not correct or alter the use of the privilege in previously filed lawsuits and the Administration has pointedly avoided stating its position on proposed legislation in both the U.S. House of Representatives and the U.S. Senate that would give judges a greater role reviewing the evidence both about the privilege and the claimed injury when the privilege is invoked in court cases.

Torture and Detention

One area in which the Obama Administration has made a tremendous effort to open up records to public scrutiny is in the torture/detention area, although implementation of the openness policy has been uneven. In April 2009, the Department of Justice released four memoranda from the Department’s Office of Legal Counsel concerning the legality of detention and torture practices. Soon after, the White House announced that it would not appeal a court decision directing the release of pictures of alleged abuse of detainees abroad. Subsequently, however, President Obama reversed that decision and when Congress then passed legislation to bar the release of the controversial pictures, President Obama signed the legislation into law. Nonetheless, in August 2009, Attorney General Eric Holder authorized the release of a version of a Central Intelligence Agency Inspector General Report critical of U.S. detention policy that was less heavily redacted than it had been during the Bush Administration and the Department of Justice committed to a review of whether any prosecutions are necessary. Most recently, a report by the Department’s Office of Professional Responsibility was released that criticized the senior lawyers who authored the legal opinions behind the controversial detention policies, although the Department of Justice ultimately determined that the authors of those legal opinions exercised bad judgment rather than actionable misconduct.

Classified National Security Information

In May President Obama directed senior officials in the national security and law enforcement arenas to review policies concerning classified national security information and sensitive but unclassified information. Despite the Administration’s refusal to launch a formal notice and comment period concerning classification, there was a historical public engagement process of a type that never before took place during the establishment of new policies for classifying and declassifying national security information.

The President’s National Security Advisor asked the Public Interest Declassification Board (PIDB), an advisory committee established by Congress that is comprised of presidential and congressional appointees, to solicit public input. The PIDB launched a web based blog discussion that solicited public comments, held a public hearing seeking recommendations, and reported the results to the National Security Advisor.

A leak of a draft of the EO in September led to criticism by a number of organizations because it lacked any commitment to declassification and public release of records and failed to include significant measures to address overclassification. Significantly, the EO and an accompanying Presidential Memorandum issued in December 2009 include provisions that address some of the comments made by the public and reflect the recommendations that came about through the government’s engagement with the public. In that sense, even aside from the innovations present in the EO, the historic process demonstrated the feasibility of public collaboration in government policy even in the national security realm.

The EO was accompanied with a Presidential Memorandum that states:

I expect that the order will produce measurable progress towards greater openness and transparency in the Government’s classification and declassification programs while protecting the Government’s legitimate interests, and I will closely monitor the results. I also look forward to reviewing recommendations from the study that the National Security Advisor will undertake in cooperation with the Public Interest Declassification Board to design a more fundamental transformation of the security classification system.

The Memorandum goes on to commit that “a backlog of more than 400 million pages of accessioned Federal records previously subject to automatic declassification shall be addressed in a manner that will permit public access to all declassified records from this backlog no later than December 31, 2013.” That would be an increase of the current 44 million pages declassified per year to 100 million pages per year. And, instead of declassification resulting in no greater public access, the memorandum specifically commits to public access.

White House Openness

The White House itself took several steps to increase its own transparency in the first year. After being sued for records of the visitors to the White House, the Administration initiated a new policy under which most visitors are disclosed after the passage of 90 days with exceptions only for personal privacy and national security. This practice is in stark contrast to that of the Bush Administration, which fought a lawsuit up to the U.S. Supreme Court in order to prevent disclosure of the names of the energy company lobbyists who met with Vice President Dick Cheney’s Energy Taskforce. While the White House’s voluntary visitor records policy is admirable, it should be noted that the White House has conceded no ground on its substantive claim that its visitor records are actually presidential records that are not currently subject to the FOIA.

The White House also reversed course on a lawsuit brought by the National Security Archive (joined by Citizens for Responsibility and Ethics in Washington) that sought to preserve and restore over 20 million missing e-mails from the Bush White House. Although it took several months for the Administration to come around a settlement table, the ultimate resolution of the litigation led to the recovery of over 20 million missing White House e-mails and is a win for transparency and accountability.

The White House also began affirmatively posting information about Executive Branch ethics waivers that had not previously been available.

Freedom of Information Act

The record on FOIA is a mix of outstanding rhetoric and mixed implementation. Under the Administration of George W. Bush, the Attorney General issued a FOIA policy memorandum that essentially told agencies that they should withhold anything that they could find an argument to withhold and that the Department of Justice was willing to defend those withholdings regardless of any countervailing factors that could weigh in favor of release.

As mentioned above, President Obama changed the policy on his first full day in office, and directed agencies to release anything they could release. Attorney General Eric Holder issued guidance in March 2009 that encouraged agencies to make releases of information when they have the discretion to do so and the Department of Justice Office of Information Policy followed up in May with guidance that explained how agencies could implement the new presumption in favor of disclosure.

The new policy appears to be having some impact at the administrative processing stages for FOIA requests. Agencies are released materials that most likely would not have been released in the past and appear a bit more willing to consider arguments that they should use their discretion in some instances to release materials. There has not been a change in situations where mandatory FOIA exemptions apply, however, such as to records that would reveal national security information.

FOIA litigation has continued at a similar pace as it took place prior to the Obama Administration and those cases appear to be just as vigorously defended by the Department of Justice as in the past.  Advocates have been urging the Department of Justice to change the way that it litigates FOIA cases in order to better represent the broad public interest underlying the FOIA, including by resolving cases in a way that serves the core of the FOIA to allow citizens to understand the operations and activities of government. Thus, for example, advocates have urged the Department of Justice to start mediating cases and have early conferences with litigants to resolve disputes and reduce the amount and cost of litigation.

Another development is the opening of the Office of Government Information Services (OGIS) at the National Archives and Records Administration. OGIS was established pursuant to the OPEN Government Act of 2007 but several factors, including the Bush Administration’s opposition to the office, prevented it from opening until September 2009. OGIS has been actively reaching out to agencies, training FOIA personnel in mediation skills, and attempting to develop alternative dispute resolution as an alternative to litigating FOIA disputes. While promising, it is still too early to tell what impact OGIS may have.

As to FOIA backlogs, which, for many years, have gone as far back as 15-18 years, the early returns suggest a gradual – very gradual—reduction in the number of extremely, outlandishly overdue FOIA requests. There are still requests as old as 18 years, but some of the agencies that have let these requests languish have made slight progress and others appear to be working hard to change their practices in order to catch up.

Thus, while there are a mix of circumstances that suggest administration of FOIA is shifting in a better direction than over the last several years, there also are signs that FOIA remains relegated to the windowless offices at the end of the hall that very few people take the time to visit. As discussed below, the capstone of the Obama openness effort is the Open Government Initiative. Due largely to strenuous efforts by NGO advocates, the Open Government Directive described below refers to the FOIA and refers to the expectation that agencies will reduce their FOIA backlogs. And, members of the government FOIA establishment have been involved in some of the Open Government Initiative efforts, the Administration has still not committed to including FOIA success in its main measure of open government success – the Open Government Dashboard described below.

Open Government Initiative: The Great Experiment

By late May 2009, advocates were eagerly awaiting the open government directive that President Obama had asked for back in January. But, all that happened in May 2009 was the launch of a Web site and public engagement process to begin soliciting ideas about open government. Over the next several months, advocates submitted comments and ideas and Administration officials began to provide hints of what was to come. The activity in the Open Government Initiative took place primarily in the Office of Management and Budget, the Office of Science and Technology Policy, and under the auspices of the Federal Chief technology Officer and the Federal Chief Information Officer, causing many advocates to fear that the focus of the anticipated open government directive was on data and technology rather than on transparent government.

Finally, on December 8, 2009, the Director of the White House Office of Management and Budget issued the Open Government Directive (OGD). The Open Government Directive is an ambitious effort to go much farther and inject the important principles articulated by President Obama about transparency and accountability into the entire executive branch. It says in its introductory language:

The three principles of transparency, participation and collaboration form the cornerstone of an open government. Transparency promotes accountability by providing the public with information about what the Government is doing. Participation allows members of the public to contribute ideas and expertise so that their government can make policies with the benefit of information that is widely dispersed in society. Collaboration improves the effectiveness of Government by encouraging partnerships and cooperation within the federal government, across levels of government, and between the government and private institutions.

The word “accountability” then appears later, getting equal billing alongside the three core principles of transparency, participation and collaboration. The Directive also mentions FOIA at least three times. It reminds everyone about the President’s and Attorney General Holder’s FOIA memos. It tells agencies to proactively use technology to disseminate useful information rather than waiting for a FOIA request. It sets a goal of a 10% annual reduction in FOIA backlogs for agencies that have a significant backlog.

The OGD set a series of ambitious deadline. Within 45 days it required agencies to register three high-value data sets that have not previously been available online in a downloadable format via Data.gov and appoint a high-level official who is accountable for the quality and objectivity of internal controls over federal spending information and who also will participate in the agency’s senior management council. The Federal Chief Technology Officer refers to the affirmative posting of data sets as a key part of an effort to “democratize data.” The idea is that agencies will give useful information to the public so that is can be used to advance the agencies’ missions, improve accountability at the agencies, and benefit American business and the public. Agencies met these deadlines, but the quality of their actions was not impressive. While agencies did post data sets by the required date, many of those data sets were not new, were not high value, or were not readily usable by the public.

Within that same 45 day time period, the Deputy Director for Management at OMB, the Federal Chief Information Officer, and the Federal Chief Technology Officer were required to convene a working group on transparency, accountability, participation, and collaboration which will be a forum for exchanging best practices, coordination, and innovation in the use of modern technology.

Soon after, within 60 days of OGD issuance, each agency was required to set up an Open Government Web page that takes in public feedback on data quality and priorities and eventually includes the agency’s Open Government Plans. At the same time, the Federal Chief Information Officer and the Federal Chief Technology Officer were required to establish an Open Government Dashboard which includes statistics for assessing progress. The purpose of the Dashboard is to grade agency transparency efforts. Its minimal criteria, however, means that all agencies appear to be succeeding, which is most certainly not the case. Moreover, the Open Government Dashboard fails entirely to consider agency performance under the FOIA, even though the FOIA is at the core of the U.S.’s open government laws. This failure is striking, given that FOIA data is already compiled on an annual basis and is both concrete and measurable.

Then, within 90 days of issuance, the Deputy Director for Management at OMB will issue guidance on the use of challenges, prizes, and incentives to encourage open government. Within 120 days the Deputy Director for Management at OMB will complete a strategy for federal spending transparency and each agency must publish an Open Government Plan based on a template attached to the Directive. Finally, the Administrator of the Office of Information and Regulatory Policy, the Federal Chief Information Officer, and the Federal Chief Technology Officer will review OMB policies, including the Paperwork Reduction Act and privacy authorities, to determine whether there are impediments to open government and the use of technology and will issue clarifying or new guidance as necessary.

Conclusion

Over the course of President Obama’s first year in office, advocates of open government have repeatedly said “the jury is still out,” “the grade is incomplete,” and “it is too early to tell” whether the Administration’s practices will live up to President Obama’s powerful rhetoric. Indeed, agencies still deny FOIA requests, members of the public are still going to court to litigate about information that was denied, there has been an excessive “datafication” of open government efforts, and the Administration has not given ground on any of the fundamental legal principles that will apply to future presidential administration. Nevertheless, the Obama Administration has used its discretion in several instances to tell the public far more than any prior administration has been willing about ethics matters, has been experimenting with innovative new methods of public engagement that are designed to bring new voices into the Washington policymaking arena, and has been devoting financial and personnel resources to changing the culture of secrecy that pervaded Washington under the prior administration and many administrations before that one. Yet, change is not easy when it means opening up to criticism and second guessing – which is what inevitably results when government is more open. In the United States we believe that the ability to judge our government ultimately makes our democracy stronger, but it also can create instability in the short term. So, the Obama Administration deserves credit for its efforts and experiments. Anything that works should be codified by Congress so that a future administration cannot shut the doors again.

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