“After early promises to be the most transparent administration in history, the Obama administration turned out to be one of the most secretive,” wrote Washington Post media columnist Margaret Sullivan last year.

Speaking at Harvard’s Shorenstein Center last month, former ACLU litigator Jameel Jaffer didn’t go quite that far. He acknowledged that Obama had taken some small steps towards greater transparency, such as making White House visitor logs available and declassifying the Office of Legal Counsel memos on intelligence interrogation (the “torture memos”).

But overall, Obama was a disappointment, said Jaffer, a respected figure who now directs the Knight First Amendment Institute at Columbia University.

“Few people today–and certainly very few transparency advocates–believe that President Obama kept his promise,” he said.  See Government Secrecy in the Age of Information Overload, October 17, 2017.

That seems wrong.

A fair reading of the record shows that in dozens of areas of national security secrecy, the Obama Administration broke down longstanding barriers to public access and opened up previously inaccessible records of enormous importance and value. Some examples:

*    In 2010, the Obama Administration declassified the current size of the U.S. nuclear weapons arsenal for the first time ever. Even during the heyday of the Energy Department Openness Initiative of the 1990s, only historical stockpile data from 30 years earlier was released.

*    The Obama Administration was also the first ever to publish the amount of the intelligence budget request for the following year. This information had been the subject of FOIA litigation in the Clinton Administration but without success. Remarkably, there is no statutory requirement to publish the budget request for the Military Intelligence Program. But the Obama Administration did so anyway.

*     A decade ago, the CIA had claimed in court that the President’s Daily Brief (PDB) was itself an “intelligence method” and therefore categorically exempt from disclosure. Obama rejected that view and ordered that no information be exempt from declassification “based solely on the type of document or record in which it is found.” Thousands of historical PDBs were declassified as a result.

*    Prior to the Obama Administration, one had to have “sources” simply to find out the names of the judges who sat on the Foreign Intelligence Surveillance Court. Now the Court has its own website and it has never been more open to third-party oversight or participation.

*    The Obama Administration established a National Declassification Center to facilitate and streamline declassification. Amazingly, the Center undertook the successful declassification of a large collection of records from the US Embassy in Indonesia in the 1960s last year in response to a request from an individual member of the public.

These are all discrete policy actions that may be of interest to some people and not to others. Not everyone cares about nuclear weapons or intelligence or Indonesia or other such topics. But under Obama there was also a systemic contraction in the whole apparatus of government secrecy. Thus:

*    In 2014, the Obama Administration achieved the lowest number of “original classification decisions” (or newly-generated secrets) that had ever been reported by the Information Security Oversight Office. In 2016, the reported number of new secrets dropped lower still.

*    Not coincidentally, in 2015, the Obama Administration reduced the number of “original classification authorities” — i.e. officials who are authorized to create new secrets — to the lowest number ever reported.

*    The Obama Administration made a policy decision to shrink the size of the security-cleared population, both to reduce vulnerabilities and to conserve resources. The number of persons holding security clearances for access to classified information dropped accordingly from around 5.1 million in 2013 to 4.2 million in 2015.

Is all of that sufficient to justify a claim that the Obama Administration was “the most transparent in history”? Not necessarily. (And not only because “transparency” means different things to different people.)

One would also have to weigh the Administration’s failings, such as its (mis)handling of the Senate Intelligence Committee report on enhanced interrogation practices, among other unhappy episodes. And then one would then have to compare the composite record to that of other Administrations. But it is far from obvious that any other Administration has a stronger claim than Obama’s to being named “most transparent,” and neither Jaffer nor Sullivan has proposed one.

It is beyond argument that Obama established new benchmarks for disclosure of many types of national security information that had previously been withheld, and that his Administration imposed new constraints on the creation of classified information.

Ignoring or dismissing the Obama record of disclosure makes it impossible to inquire how such disclosures happened, and how they could be replicated and extended. Cynicism is a poor foundation for strategy.

The effort to establish a uniform policy for Controlled Unclassified Information (CUI) is meeting opposition from some executive branch agencies who see it as unnecessary and unwelcome.

CUI refers to information that is unclassified but that requires protection for reasons other than national security– such as privacy, proprietary concerns, law enforcement sensitivity, and so on. In past years, more than 100 separate and sometimes conflicting policies for such information were put in place. The CUI program, established by President Obama’s executive order 13556 in 2010, was intended to simplify, standardize and streamline that profusion of security policies for unclassified information.

Some agencies, like Veterans Affairs and the Social Security Administration, are moving forward to adopt the new CUI policy.

Others, however, are not.

Earlier this month, officials from several large agencies — including CIA, DOJ, DHS and DOD — raised a whole series of objections to the CUI program in a letter to the Information Security Oversight Office (ISOO).

The officials contended in the undisclosed letter that there are several unresolved issues that must be addressed before CUI implementation can go forward. These are said to include inadequately defined governance of the program, financial costs thought to be in the billions of dollars, gaps in coverage affecting certain types of information, and commingling of CUI and classified information that will make proper marking of documents excessively long and complicated.

But ISOO director Mark Bradley said that these issues had either already been addressed or could be resolved. He said ISOO would prepare a formal response to the agency complaints.

Another point of contention is the impact of the CUI policy on government transparency and whether it will enhance or impede public access to unclassified information.

One of the original objectives of the CUI program was to reduce controls on unclassified information by limiting their use only to those instances where they were required by law, regulation or agency-specific policy. Arbitrary or improvised prohibitions on disclosure (such as the open-ended “for official use only”) would be not be authorized.

But in a privately circulated white paper, former CIA classification official Harry Cooper said that the CUI approach would lead to more government secrecy, not less.

Cooper noted that there were now some 129 authorized categories and subcategories that could be used to withhold information as CUI based on more than 400 laws and regulations. (Agencies had originally submitted more than 2,200 proposed CUI categories and subcategories.) As recently as September 25, a new CUI subcategory was added for “Intelligence-Internal Data” to cover various types of unclassified CIA information that is “not intended to be disseminated beyond CIA channels” including names, titles, salaries, and more.

“The full implementation of CUI will likely cause an expansion of the use of [FOIA exemption] (b)(3) and as a result information that would have been released prior to CUI will now be protected from release,” Cooper wrote. “Without CUI there is no marking to identify specific laws blocking access and government reviewers often missed those obscure laws that could potentially block access.” See Controlled Unclassified Information: Government Bureaucracy Out of Control by Harry Cooper, July 2017.

ISOO director Mark Bradley disputed Cooper’s critique. He said that the CUI categories and subcategories are not equivalent to FOIA exemptions. And the CUI implementing directive makes it clear, he said, that CUI markings are not to be used as a basis for rendering FOIA decisions.

Bradley said that the CUI program should result in an increase in transparency by excluding unauthorized controls on information and by exposing the CUI decision-making process to public scrutiny. He noted that some agencies had urged that the CUI Registry — which lists all of the CUI categories and subcategories — should not be a public document. But that view was rejected by ISOO, especially since the contents of the Registry refer to public laws and regulations.

CUI has roots in the Obama Administration’s executive order 13556, and even further back in a 2008 memorandum from President Bush. So it is conceivable that the CUI policy could be modified or abolished by the Trump Administration.

But in a September 8 memo to agency heads on unauthorized disclosures, national security advisor H.R. McMaster referred to “the importance of protecting classified and controlled unclassified information” — which was understood as a White House endorsement of the CUI construct.

In the meantime, CUI is entering the implementation phase, ISOO director Bradley said. “It’s not going to go away. It’s not going to be reversed.”

It is entirely possible that there will be unintended consequences from CUI implementation, he allowed in an interview last week, “but we will deal with them. As we find problems, we will fine-tune and adjust.”