Opening up

Pub date March 11, 2009
WriterSarah Phelan


Shortly after his election in November 2008, President Barack Obama received a letter from Public Citizen and 59 other nonprofit groups noting that the public’s access to information about the government had been shut down under President George W. Bush.

The groups urged Obama to help "by issuing a presidential memorandum on Day One that makes clear that government information belongs to the people and that directs federal agencies to harness technology and personnel skills to ensure maximum accessibility of government records, consistent with law, regulation, and administrative orders."

Obama responded to these concerns on his second day as president by sending a memo to heads of executive departments and agencies that committed his administration to more transparency and unprecedented disclosures of information.

"In our democracy, the Freedom of Information Act, which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government," Obama said, noting that FOIA "should be administered with a clear presumption: in the face of doubt, openness prevails."

Open government advocates warmly welcomed Obama’s announcement. But 50 days later, as they wait for U.S. Attorney General Eric Holder to issue new FOIA implementation guidelines, some worry that the new administration may still need more prodding.

Peter Scheer, executive director of the San Rafael–based California First Amendment Coalition (one of the letter’s signatories), told the Guardian that it remains to be seen how Obama’s directive will be implemented.

"The directive is good. The spirit is right. But what really matters is whether more information is turned over to the public on a timely basis," said Scheer, who hopes the Obama administration will explore ways to change the FOIA incentive structure so that agencies have a genuine bias in favor of giving out more information, not less.

"Right now, the incentives are all in favor of withholding information," Scheer explained.

Lucy Dalglish of the Reporters Committee for Freedom of the Press told the Guardian that she is looking forward to the U.S. Attorney General’s new FOIA guidelines. "I imagine they will say, ‘If you have discretion to disclose information do so, make a greater effort to meet FOIA deadlines, and put an emphasis on proactively posting stuff online,’" Dalglish predicted.

"The difficulty I see lying ahead is a lack of money to help agencies tackle the backlog of FOIA requests," Dalglish said. "But otherwise, I think we’re going to be in pretty good shape."

Scheer was happy about the Obama administration’s March 2 release of nine highly controversial memoranda and legal opinions that the U.S. Department of Justice’s Office of Legal Counsel prepared under Bush in the aftermath of 9/11, purporting to authorize warrantless national security wiretaps on U.S. citizens, extrajudicial detention of US citizens suspected of terrorism, and use of the military to conduct counterterrorist operations in the U.S.

In the last days of the Bush administration, DOJ officials claimed that most of these opinions were withdrawn by 2003, but open-government advocates believe their release helps prove the extent to which the Bush regime violated the constitution.

"Let’s just hope Obama is just as amenable to releasing his own legal memoranda, four years from now, as he is to release the prior administration’s more embarrassing documents," added Scheer.

He would also like to see an acceleration of the process for declassifying older national security materials and Federal Bureau of Investigation materials, and hopes that a review of Bush–era DOJ use of the state secrets privilege will "result in a modification or abandonment of that policy, except where absolutely necessary to protect vital national security interests.

"I think everyone became quite reasonably suspicious during the Bush years, when a privilege that was previously rarely invoked was popping up in literally dozens of cases and clearly being overused," Scheer explained.

Yet Dalglish fears that sunshine gains under Obama could be offset by the demise of mainstream newspapers.

"If the San Francisco Chronicle and Seattle Post-Intelligencer join Denver’s Rocky Mountain News in closing this year, the United States will be in a world of trouble in the future in terms of fighting for greater openness and transparency in government," Dalglish opined. "For the last 50 years, the mainstream media, not the alternative press, has been waging most of these battles pushing for open government."