The Illusion of Transparency
posted by Danielle Citron
On January 21, 2009, President Obama issued the Open Government memorandum, expressing his commitment to a transparent government. In that memo, the President instructed executive departments and agencies to administer FOIA with a “clear presumption” in favor of openness. Attorney General Eric Holder quickly filled in details of the transparency mandate. His March 19, 2009 FOIA memorandum explained that agencies should err on the side of making discretionary disclosure of information unless the agency could “reasonably foresee” that the disclosure would harm an interest protected by a statutory exemption. It ordered partial disclosure if an agency determines it cannot make full disclosure of a record as well. At the time, FOIA experts deemed the President’s commitment to transparency transformational. No previous President had seemed so interested in open government.
Last year, the National Security Archive issued a cautiously optimistic review of the Administration’s implementation of the FOIA mandate. According to the Archive’s audit, 38 out of 90 agencies responded to the Holder memo either by explicitly changing their internal policies or by training employees. Only 13 out of 90 agencies though had actually made concrete changes in their FOIA procedures. The remaining 52 agencies either had no records to suggest that they had done anything to change their practices or provided no response at all. With its report, the Archive sent a clear message to the Obama Administration that its policies looked good on paper but needed more leadership.
A few weeks ago, the National Security Archive issued its report “Glass Half Full: 2011 Knight Open Government Survey Finds Freedom of Information Change But Many Agencies Lag in Following Obama’s Openness Order.” Like the year before, the survey’s team filed FOIA requests with 90 federal agencies that have chief FOIA officers, asking for concrete changes in their FOIA regulations, manuals, training materials, or processing guidance as a result of the Open Government memorandum and a March 2010 White House memorandum instructing agencies to update all FOIA material and assess whether their FOIA resources were adequate. The team found some progress. For instance, 49 agencies took concrete action in response to the March 2010 memo. Nonetheless, just 24 agencies actually updated their FOIA training materials, and only 13 agencies followed its mandate. The bad news: 41 of the agencies remained inert. Of those 41 agencies, 17 could not provide concrete records showing that they had followed the memo’s instructions; two agencies withheld documents by incorrectly citing FOIA exemptions; 17 agencies were still working on the request after more than 100 business days (in violation of FOIA); and four agencies never acknowledged the team’s requests despite numerous calls and faxes. Ancient requests, as old as 18 years, “still languish in the system.” As the team reports, twelve agencies have outstanding FOIA requests older than six years.” Eric Newton, an advisor to the Knight Foundation, remarked that “at this rate, the President’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office.”
At a hearing before the House Committee on Oversight and Government Reform, FOIA expert Daniel Metcalfe expressed his disappointment by the “surprising slowness and incompleteness of the Obama Administration’s new FOIA policy implementation.” Metcalfe lamented the administration’s “do as I say, not as I do mentality,” as evinced by the performance of its lead agency, the Department of Justice, whose FOIA backlog is worse than it was a year ago. At a Senate Judiciary Committee hearing, Sarah Cohen, a Duke University professor, testified that proactive disclosures are inconsistent and that certain documents that are required to be online, such as records pertaining to the reconstruction efforts in Iraq and Afghanistan, are inconsistently made available on agency websites. The Department of Justice just launched FOIA.gov, a website that provides a fruitful way to track FOIA agency compliance. Stay tuned.