In a breathtaking series of statements and executive actions, President Barack Obama yesterday announced “the beginning of a new era of openness in our country.”
“For a long time now there’s been too much secrecy in this city,” he told reporters at a January 21 swearing-in ceremony.
“The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed” (a paraphrase of the October 2001 policy statement of former Attorney General John Ashcroft). “That era is now over.”
“Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known,” President Obama said.
Moreover, “I will also hold myself, as president, to a new standard of openness…. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well-grounded in the Constitution.”
“Let me say it as simply as I can. Transparency and the rule of law will be the touchstones of this presidency.”
Accordingly, the President issued several new policy statements. A new policy on Freedom of Information directed that “All agencies should adopt a presumption in favor of disclosure” and called for the Attorney General to develop new FOIA guidelines reflecting that principle. A broader statement on Transparency and Open Government directed agencies to “harness new technologies to put information about their operations and decisions online and readily available to the public,” and ordered preparation of recommendations for an Open Government Directive. A new executive order rescinded an order issued by former President Bush that imposed increased restrictions on public access to presidential records.
The whole package gained immense force from the fact that it was presented on the President’s first full day in office. (By comparison, the Clinton and Bush Administrations did not get around to addressing FOIA policy until October of their first year in office.) The actions closely tracked the recommendations of openness advocates, and they represented a personal commitment to openness and accountability that goes far beyond what any previous President has dared to offer.
Inevitably, several caveats are in order. A “presumption of disclosure” really only applies to records that are potentially subject to discretionary release, which is a finite subset of secret government information. Vast realms of information are sequestered behind classification barriers or statutory protections that remain unaffected by the new policy statements. “In the face of doubt, openness prevails,” the President said. But throughout the government secrecy system, there is not a lot of doubt or soul-searching about the application of secrecy.
For example, last week Lt. Gen. Ronald L. Burgess, Jr., the director of the ODNI Intelligence Staff, denied a FOIA request for declassification and release of the 2006 intelligence budget total, even though the 2007 and 2008 budget numbers have already been officially disclosed (Secrecy News, January 14). According to ODNI, the 2006 number is still classified, and its disclosure would compromise intelligence sources and methods. The problem here is not that doubt mistakenly yielded to secrecy instead of disclosure. The problem is that General Burgess and his colleagues cling to an obsolete and counterproductive classification framework.
Unfortunately President Obama’s new directives do not yet encompass the needed overhaul of the national security classification system. That may have to wait another day or two.