On President Barack Obama’s second day in office, Jan. 21, 2009, one of his first actions was to sign a memorandum that laid the groundwork for the eventual adoption of the Open Government Directive (OGD) on transparency and ethics.
In his first White House blog post, then-new media director Macon Phillips outlined the three priorities of the administration when it came to open government: communication, transparency, and participation.
How closely the Obama administration has hewn to these principles over the past four years deserves an examination. This series will do that, devoting an article to each of those principles.
Transparency
Shortly after taking office, President Obama signed a “Memorandum for the Heads of Executive Departments and Agencies” on “Transparency and Open Government.”
I direct the Chief Technology Officer [Aneesh Chopra (since succeeded by Todd Park)], in coordination with the Director of the Office of Management and Budget (OMB) and the Administrator of General Services, to coordinate the development by appropriate executive departments and agencies, within 120 days, of recommendations for an Open Government Directive, to be issued by the Director of OMB, that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum. The independent agencies should comply with the Open Government Directive.
“I will also hold myself as President to a new standard of openness,” Obama said.
The administration created the Open Government Partnership and published the “U.S. National Action Plan (PDF),” which “builds on, but does not replace, the Open Government Initiative” and highlights “what has been accomplished thus far and lay out some of our goals and plans for the future.”
Wins
The Obama administration’s record is one of some notable successes. In addition to creating OGD and, under the National Archives, the National Declassification Center for the more timely declassification of government secrets, the administration has also created and maintained a number of initiatives and sites toward that end.
Data.gov, a distribution site for government datasets; Recovery.gov, which communicated where the economic stimulus funds were spent; NASA’s Open Government Initiative; and FOIA.gov have all have been cited as high points of this administration’s drive toward openness.
“They’ve made a lot of steps toward making government more transparent and accountable,” Sean Moulton, director of federal information policy at OMB Watch, an open government group told the Daily Dot in a telephone conversation. Through the OGD, they’ve “established that each agency create and regularly update an openness plan.”
With each agency covering a different type of information, some have opened quite quickly. Others, like Health and Human Services, worrying about exposing private health data, have moved more slowly. But all have been affected by the requirements.
The Economist notes that, additionally, President Obama has made no claims of executive privilege to avoid turning over information to Congress. This is in sharp contrast to both President George W. Bush and President Bill Clinton, who did so six times and five times, respectively.
Failures
The gap between ideals and action, or rhetoric and change, is never absent from an administration. Sometimes that gap is a crack; other times it is a chasm. The size of the gap in government is determined by the same factors that create discontinuities and dissonance in other large organizations.
How much is a leader willing to push his bureaucracy? Bureaucracies are noteworthy for inertia at best and intransigence at worst. The current government bureaucracy is not remotely noteworthy in its deviance from the old pattern.
“Transparency is a good thing,” Moulton said, “but I also think [the administration has] been a little naive in what it would take to get that vision implemented. There have been a lot of instructions, but those instructions have not always followed up with heat.”
According to a report by Bloomberg News, 19 out of 20 cabinet-level agencies failed to produce information in a timely fashion on “out-of-town travel expenses generated by their top official,” according to a Freedom of Information Act (FOIA) request.
Under the terms of the FOIA, a government agency has 20 days to produce the information in the request, a feature Attorney General Eric Holder has called “an essential component of transparency,” as noted by Bloomberg. (Only six cabinet-level agencies ever produced the information requested.)
About half of the 57 total agencies that the publication filed requests with responded, but the majority did so long after the time-frame allowed by the act expired.
Last year, the Department of Justice set up an FOIA scorecard website, FOIA.gov. According to information on this site, about 40 percent of requests from 2008-2011 were honored, about a quarter were partially granted, almost 5 percent were denied by exemption, and over a third were fully denied without an exemption.
Exemptions are for national security and related issues. Those exemptions, over 450,000 last year, showed a 50 percent increase from the last year of the Bush presidency. Of last year’s exemptions, about 232,000 came from Homeland Security.
White House spokesman Jay Carney addressed this issue in a briefing last year:
Federal agencies in this administration, under President Obama’s leadership and directives, have disclosed more information and withheld less information in response to FOIA requests, precisely because of the directives that this President has made… The President believes that greater openness and transparency strengthens our democracy, promotes efficiency and effectiveness in government, and he will continue to pursue the initiatives that he believes very much are in the interests in the American people.
Politifact quoted Rena Steinzor, president of the Center for Progressive Reform, as crediting the obscure Office of Information and Regulatory Affairs (OIRA) as a drag on the movement toward openness.
OIRA “receives drafts of rules and regulations and coordinates changes to them before they are published in the Federal Register. Those changes are kept secret, according to a report authored by Steinzor.”
A 2009 report by the Government Accountability Office (GAO) found OIRA had adopted only one of eight recommendations to make its activities more visible outside the office.
Steinzor was very forthright with the Daily Dot:
This agency has played a very destructive role; it’s a conservative office. This office is not transparent. It is supposed to release docs that go back and forth between agencies, but for 40 years, it has been a one-way ratchet.
Their non-cooperation reaches all the way back to transparency rule made in 1993 as an executive decision by then-President Clinton.
The lobbyists, Steinzor told the Daily Dot, have an outside influence on this office, and if sunshine is the best disinfectant, it is not one that the OIRA has so far chosen, or been forced, to use.
When it comes to actions that the president has taken directly, or over which he has had direct control or supervision, two instances that are often referenced are the administration’s treatment of whistleblowers and its negotiations with drug companies during the creation of the Affordable Care Act. Neither of these could be called transparent by even the most partisan of observers.
Obama promised early on that his administration would strengthen whistle-blowing legislation to protect those who identified waste and wrongdoing at corporations and government agencies. But far from honoring Thomas Drake, a whistleblower in the National Security Agency, for informing on issues in that agency, the administration prosecuted him under the Espionage Act.
As David Carr noted earlier this year in his article for the The New York Times, from 1917 to 2008, the Espionage Act was used three times. Obama has employed it six times.
It is also important to also note that these six cases are what ABC White House correspondent Jack Tapper called “classic whistle-blower cases that dealt with questionable behavior by government officials or its agents acting in the name of protecting America.”
Another issues is the use of the “state secrets” evidentiary privilege in court cases.
Moulton cites the example of those people who have been arrested under the mistaken belief that they were terrorists because they had the same name, or a similar name, as someone on a watch list.
“Their lives are destroyed after six months of interrogation,” Moulton said. “So, they sue. These cases are getting cases thrown out using the state secret privilege. The Obama administration promised greater transparency in the decision-making behind using the privilege. A lot of people had the expectation that a summary or argument would be issued justifying the use of this extreme privilege.”
That has not been the case.
Prosecuting those who bring shady practices into the light can hardly be described as friendly toward transparency. Nor can using a blanket no-look provision. If “national security” is not just a convenient lever of power, it needs to be addressed.
Finally, the May 2012 report to the president by the Information Security Oversight Office (PDF), indicated a 43 percent decrease in secret classifications from 2010. However, the Obama administration has declassified fewer documents overall than President George W. Bush’s did by around 50 percent. President Bill Clinton declassified about five times more than Obama. In 2010, according to the ISOO, costs for classification jumped above $10 billion for the first time, a 15 percent increase over 2009.
Grade
To say that government bureaucracies have dragged their feet or even sabotaged the Obama administration’s drive toward openness, even if it were true, would hardly let the president off the hook. A torporous bureaucracy is not a mitigating factor; it’s a given.
If that were the only issue, we would still need to evaluate the president in terms of his ability to inspire, cajole, threaten, and rebuild that bureaucracy so it might function.
However, additional factors also contribute to the current administration’s failures in openness.
The state of war, and the need for secrecy such a state requires, has led the administration to be more secretive than many advocates would like. That state of war tends to bloat secrecy. From the prosecution of whistleblowers to the refusal to grant FOIA requests, wartime secrecy attracts more and more documents, issues, facts, and figures to itself, folds more and more actions, offices, and agencies into its gravity well. With world enough and time, the red giant of national security becomes a black hole that crushes the light out of anything that crosses its horizon.
In other words, “just to be safe,” things that need not be classified or denied the open air may be kept close and closed. It would be naive to imagine there have not been cases in which things which were merely embarrassing to the administration or only damaging to a personal career were stamped secret or otherwise rescued from the sunlight.
Just as the president must be credited for outlining a transparency initiative perhaps never seen before in the White House, establishing the office of the CTO, issuing the Open Government Directive, launching Data.gov and more, he also must take responsbility for his administration’s failures.
It would be easy to make a compelling case for the Obama administration being an historical leader in giving access to financial information and providing tools with which citizens can access it.
It would be equally easy to make a compelling case against the Obama administration for its consistent unwillingness to reduce secrecy in traditional areas, such as law enforcement and domestic security. If anything, a case could be made that it has backslid on those facets of openness.
The notion of a “report card” here is figurative. We have no intention of reducing a complex, and indeed ongoing, examination of a government’s commitment to open data to a letter grade, much less a checkmark or a smiley/frowny face.
Instead, let’s just spit it out.
Obama has opened up government data in ways that have never been done before. Part of that was vision, part was citizen demand, and part was the culture current technology has influenced. He has started this process. But given the inertia of governmental bureaucracies and the president’s unwillingness or incapacity to change it and given the cancerous appeal of secrecy to a government waging war, he will not be the president to bring us to true openness.
That will have to wait not just for another term, but quite likely for another time.
The White House did not respond to a request for comment by the time this story was published.
Correction: President Obama did not sign a executive order on his first day of office creating the Open Government Directive. He signed an memorandum on his second day, Jan. 21, which created the groundwork for the OGD. This article has been changed to reflect that change.
Photo by Melissa Preston
