When President Barack Obama stepped into office in January 2009 and immediately called for a more transparent, participatory government, freedom of information advocates were thrilled by the positive memorandum.
However, more than a year and a half later, advocates are contemplating whether Obama’s FOI policies have been as far-reaching as he made them seem.
The administration is trying to inject transparency goals into the framework of federal agencies and departments, which is easier said than done.
“The true test for agencies is whether they’re releasing information they might not want to release,” said Rick Blum, coordinator for the Sunshine in Government Initiative. “President Obama’s day-one FOIA memo says when in doubt, let it out.”
The Sunshine in Government Initiative released an analysis this year of how federal agencies have responded to FOIA requests. According to the findings, the 29 largest agencies responsible for handling about 97 percent of federal FOIA requests reported more information releases and faster response times but longer waits for solving disputes.
Some agencies also drastically reduced their backlogs in 2009, such as Homeland Security, which cut its backlogs from 77 to 17 percent of requests. However, 12 out of the 29 agencies saw increases in their pending requests, according to the initiative’s research.
“For some agencies, they’ve really taken it to heart,” Blum said. “Others were forced to figure out what open government and transparency meant. There are still long delays. Agencies that don’t want to release information can find ways to delay or ways to not disclose documents. In some ways, not much has changed at all.”
CHANGING FEDERAL RESPONSE
In an Open Government Directive issued in late 2009, the Obama administration called for agencies to place more information online, including high-value data sets. The directive also calls on agencies to create open government portions of their websites and reduce FOIA request backlogs.
“They’ve been pretty good about executing the goals they have set, but I think the goals have been relatively modest,” said Clint Hendler, staff writer with the Columbia Journalism Review. “It would be a shame to see it come out as a half-measure.”
Hendler has been following Obama’s transparency initiatives for CJR and has even given the administration a 2010 report card, which ranged from an A-minus for disclosing White House visitor records to an F for off-the-record briefings.
“I’d love to see another round of requirements that call for agencies to put up data and get it out there more quickly,” Hendler said.
He said journalists are forced to take the administration’s word that the White House is releasing all the information it can. Records of personal visits to the president, records that pertain to national security and particularly sensitive meetings don’t have to be released, which are categories that could be “ripe with abuse,” he said.
A way to battle this abuse was to create a mediator, which is exactly what the federal government achieved in September 2009. The federal Office of Government Information Services was formed as part of the OPEN Government Act of 2007. The goal of the OGIS is to provide training, resolve agency and requester FOIA issues, and review agency compliance.
Since its start, the office has opened about 300 cases. Staff have noticed four general reasons why they are contacted: People are looking for information on how to make a request, facing substantive withholdings, attempting to request records on themselves (which OGIS can’t help with because that procedure is part of the Privacy Act), and dealing with delays.
OGIS Director Miriam Nisbet said it’s too soon to be able to pinpoint hiccups in the FOIA system.
“I don’t think we can point to certain agencies or point to certain exemptions right now,” Nisbet said. “We’ve seen a variety.”
Outside advocate groups agree that it’s too soon to tell how effective the office is going to be in resolving disputes and opening up government.
“We don’t know yet how effective that federal ombudsman is going to be, but we certainly interact with her all the time,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “The potential is there. I don’t know in the long run whether it’s going to be a small help or big help to the public.”
Nisbet said making information more readily available will take time within agencies.
“Sometimes it’s a matter of the agency withholding too much or over-reading an exemption,” she said. “In other cases, the agency has made a correct call. We certainly don’t always end up saying that more information should be released. Sometimes the agency has done it correctly.”
FIGHTING BACK
Advocates have seen overall trends in FOIA complaints. Blum with the Sunshine in Government Initiative said his organization has seen FOIA requests denied, but when requesters appeal, the agency discloses what they need.
“Reporters feel they’re still being pushed around,” Blum said. “An agency may just genuinely be overburdened with FOIA requests and may not be able to get to them, but there’s too much wiggle room that agencies have. Reporters are distrustful by nature, but unfortunately, the way its set up now is that it’s very hard to tell if an agency is just sitting on a request because they don’t want to deal with it and don’t want to disclose.”
When the only option for news organizations is to take legal action in order to gain access to information, sometimes they don’t have the money to do so.
Scott Hodes, a FOIA attorney based in Washington, D.C., said that when news organizations think of the word “lawyer,” they tend to think in terms of a big law firm. They may end up spending tons of money on a firm that doesn’t specialize in FOIA.
“Most of the ones I speak to say, ‘Boy, I wish you could do some work for us because we have all these FOIA issues but we have no money,’” Hodes said. “I’ve helped them to some extent, but I’m in business as well.”
Covering transparency issues on the federal level is easier for some outlets, harder for others. Dalglish said investigative reporting has taken a hit due to economical woes in the industry.
But transparency coverage has gotten better. Blum said the Sunshine in Government Initiative has collected more than 500 FOIA stories in a database on its website.
“Instead of complaining about the lack of transparency quietly, journalists are more willing to write about it,” he said.
CONTROLLING THE MESSAGE
Every White House administration works to control its message, and the Obama administration’s efforts have been troubling journalists.
Hendler with CJR investigated Obama’s message-control policies and noted that Obama had made himself less available to the White House press corps than President George W. Bush did. He went 309 days without a White House news conference.
Another complaint has been that the White House is shutting out the press and only allowing White House photographers and writers at certain events, therefore only providing accounts from the White House’s point of view.
“Every presidential administration masters message control,” said Dalglish with the Reporters Committee. “The only thing that differs is how quickly they master it.”
Dalglish said this administration also is attempting to control the message by surpassing subpoenas and squashing whistle-blowers altogether.
“They seem to go after them without shaking down the reporters to try and figure out who they are,” she said.
Over the past year, important whistle-blower cases have involved figures like Pfc. Bradley Manning, a U.S. intelligence analyst who was suspected of leaking classified video of a helicopter attack on innocent civilians and more than 90,000 reports on the Afghanistan War. Another figure is former National Security Agency official Thomas Drake, who was indicted on charges of leaking information about expensive, privacy-abusing NSA programs. Also, WikiLeaks is consistently under fire for posting sensitive information to its website.
“It’s just really sad because if we don’t get the information from those witnessing it on the front lines, then we won’t know about these gross human rights violations that are occurring,” said Shanna Devine, legislative campaign coordinator for the Government Accountability Project.
Devine said she would like to see a whistle-blower protection enhancement act passed that would extend first-class due-process rights to federal employees and federal contractors.
“We do have more support in this administration than any other administration in passing strong whistle-blower protection,” Devine said, “but it’s not enough on its own. We need Congress to get it done, and Congress’ will is their constituents’ will.”
The day the Government Accountability Project is put out of work is a good sign, she said.
“The day we are no longer needed is a day we look forward to,” Devine said. “That is when whistle-blowers no longer need to be whistle-blowers because the abuses they come forward with will be addressed responsibly or they’ll cease to exist.”
EXEMPTIONS AND SECRECY
There are nine exemptions with FOIA, and the reasons range include national security, trade secrets and personal privacy. Many complaints are associated with “exemption b3,” which is considered a catch-all for FOIA exemptions. It prohibits disclosure through subsequent federal statute.
“Agencies often flip them into their budget proposals or members of Congress will add them oftentimes as afterthoughts to legislation,” Blum said.
The Sunshine in Government Initiative wants to see a better procedure put in place for dealing with the number of statutory exemptions and cutting down the number proposed every year, he said.
“This is secrecy run amuck in that there are very few guidelines that agencies have to go by when trying to decide whether information fits under exemptions,” he said.
Members of the media as well as open government advocates feel that change is slow when it comes to Obama’s FOI directives. The sweeping transparency gesture on Day One has not held up, and perhaps this is more the fault of slow-moving agencies.
“Employees in federal government were tasked with setting up transparency,” Hodes said. “I think they let down the president as well as the citizens.”
With a little less than 2½ years to go in Obama’s presidency, advocates believe Obama is committed to transparency, even though his choices at times fall short of that commitment.
Dalglish said she hopes the current administration will make many more affirmative disclosures of useful information, but confusion still exists within agencies on what transparency actually means.
“It’s all about answering questions that the public has,” she said. “It isn’t about having the world’s greatest computer system and the world’s greatest software managers.”
Steve McConnell, president of the American Society of Access Professionals, said the Obama administration should focus on fundamentals before making sweeping changes to the system.
“If we keep on looking at new procedures and implementing new change, sometimes we forget about what the basics are, and the basics are the process of the FOIA and reducing the backlogs,” McConnell said.
And the clock is ticking. Time may be running out to bring more change to federal government if the next administration isn’t as gung-ho about transparency reform.
“Who knows if the next president’s going to have the same enthusiasm?” Hendler asked. “We have to strike when the iron’s hot.”
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