Open Government: We Live in Hope

By William Fisher

Advocates for greater freedom of information are expressing approval of the Obama Administration’s "Open Government Directive" – but some are sounding cautionary notes that executive agencies are still hiding behind “national security” to conceal government misconduct.

The White House Office of Management and Budget (OMB) issued its "Open Government Directive" yesterday, instructing government agencies and departments to take specific actions to increase "transparency, participation and collaboration" in government, with the aim of creating "an unprecedented and sustained level of openness and accountability in every agency."

The directive is intended to make good on the pledge of transparency President Barack Obama made during his first week in office.

The directive establishes deadlines for action and imposes guidelines for publishing government information and improving the quality of that information. It also orders each agency to establish an "Open Government Plan" that details how it will incorporate transparency, opportunities for public participation and inter-agency collaboration into its core mission objectives.

The directive does not apply to classified security information and makes an exception for "information whose release would threaten national security."

It is this latter condition that concerns civil libertarians. Jameel Jaffer, Director of the National Security Project for the American Civil Liberties Union (ACLU), said, “We remain concerned that executive agencies are invoking national security concerns as a pretext to suppress records that relate to government misconduct. We are particularly concerned about the Defense Department's refusal to release photos relating to the abuse of prisoners, the CIA's refusal to release information about black sites overseas and the Justice Department's refusal to release the legal memos that supplied the basis for the Bush administration's warrantless wiretapping program.”

He said, “While we appreciate the steps that the Obama administration has taken to increase government transparency, the administration's stated commitment to transparency has not yet translated into real change on information relating to national security policy.”

While President Obama has talked about instituting “a new era of transparency” since his first days in office, in many instances his Department of Justice has followed precedents set by Obama’s predecessor, George W. Bush. These have included invoking the “state secrets privilege” as a way of stopping court cases brought by people who claim to have been injured by U.S. Government actions. These injuries range from “Middle Eastern-looking” men being rounded up and imprisoned in the days following the terrorist attacks of September 11, 2001, to charges from others that they were victims of the “extraordinary rendition” program run by the Central Intelligence Agency (CIA).

Extraordinary rendition refers to a program in which people are kidnapped by the CIA in countries overseas and then sent to third countries where they are imprisoned, usually denied access to lawyers or to the International Committee of the Red Cross, and tortured by their jailers.

Despite these flaws, the ACLU’s Jaffer said he welcomed the release of the Open Government Directive, “particularly because it sets out specific, concrete steps that agencies must take in order to fulfill the Obama administration's stated goal of increased government transparency. As the directive itself makes clear, the principles of transparency, participation and collaboration are fundamental to our democracy.”

The directive is comprised of four main components centered on four themes – publishing information; creating a culture of openness; improving data quality; and updating policies to allow for greater openness. Each section tasks agencies and other key offices with specific goals, complete with deadlines.

A major new requirement in the directive is for each agency to develop specialized Open Government Plans within the next 120 days. These plans must detail exactly how each agency will improve transparency and integrate public participation and collaboration into its activities. An attachment to the directive lays out the required components of the plan.

Agencies will also be required to establish an Open Government webpage on their sites and permit public participation on the development of the plans, as well as gather input on transparency issues on an ongoing basis. The White House website will also establish an Open Government Dashboard to track agency plans and performance. These will be the places to watch to see how well the next step in government openness proceeds.

It also requires agencies to make use of modern technology to take a proactive approach to distributing information. Today, people are often forced to file Freedom of Information Act (FOIA) requests and to sue Federal agencies to compel their compliance. Federal agencies process thousands of FOIA requests each year.

The directive was welcomed by OMB Watch, one of a group of private not-for-profit advocacy groups that helped the administration draft it.

Gary D. Bass, the organization’s executive director, noted that the new directive marks a new direction for the executive branch. "The directive’s presumption of openness – certainly a positive step – reflects a thoughtful understanding that achieving the goal of transparency requires a cultural shift in the way government operates." stated Bass. "The directive’s scope and specificity blends both rigorous timelines and agency flexibility that will likely achieve significant improvements in government openness across agencies. The key will be how the public, the White House, and federal agencies work together in implementing the directive." Bass added.

The content of the directive reflects many of the transparency recommendations collaboratively developed by the right-to-know community during a two-year process coordinated by OMB Watch. Those 70 detailed recommendations were delivered to the Obama transition team in a report called Moving Toward a 21st Century Right-to-Know Agenda. Among those recommendations were requests for creating incentives for openness, interagency coordination, and publication of high-priority data that is currently unavailable – all of which are addressed in the new directive.

The organization said the task before government now is to implement the new policy prescriptions.