Transparency Tripped Up

Government transparency advocates criticize Obama’s failures at conference

January 22, 2013

Journalists, transparency organizations, and government staffers met at the Washington College of Law (WCL) at American University last Thursday to discuss where, how, and why President Barack Obama has fallen short in his stated goal of reforming the federal government's secretive ways.

The WCL Collaboration on Government Secrecy, headed by law professor and former Department of Justice Office of Information and Privacy director Dan Metcalfe, hosted the event. It is the group’s fifth assessment so far of transparency in the Obama administration.

"We had a good time the first year, and then the following three years we had an annual assessment," Metcalfe said. "And that’s when the disappointment began to set in."

Obama issued a memo on freedom of information on his first day in office, telling agencies, "The Freedom of Information Act (FOIA) should be administered with a clear presumption: In the face of doubt, openness prevails."

Obama also named Norm Eisen the White House ethics chief. Eisen, who founded the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW), helped craft the executive branch’s open government initiative and was known as "the fun sponge" for his hardline stance on ethics.

Attorney General Eric Holder issued a 2009 memorandum to all federal agencies reiterating the presidential directive and announcing that the Justice Department would not defend frivolous denials of FOIA requests.

These moves raised high hopes among watchdog groups and journalists that the Obama administration would reverse the trend of increasing government secrecy and obfuscation.

However, federal agencies largely ignored the executive branch’s directives and the White House did little to enforce compliance.

"They put effort into crafting these regulations, but they don't put effort into forcing the behemoth of government to adopt them," said Nate Jones, FOIA coordinator for the National Security Archives.

A government-wide audit performed by the National Security Archives in December found 62 of 99 federal agencies have not updated their FOIA regulations since Holder issued the memorandum.

FOIA regulations for federal agencies were hard to find, inconsistently located, and in some cases apparently non-existent, said National Security Archives personnel.

"We ended up having to send 18 FOIA requests to agencies just to try and get their FOIA regulations," said Tom Blanton, director of the National Security Archives. "Surprisingly, we got a couple of 'no responsive documents' denials."

The audit also revealed that 56 agencies have not updated their FOIA regulations since the passage of the OPEN Government Act of 2007, which mandated agencies retool their FOIA offices, including fee structures and reporting.

Holder has done little to implement his guidelines four years after issuing them, and his Justice Department has defended all agencies that chose to withhold information from the public, a report on found.

Mark Tapscott, executive editor of the Washington Examiner, said the White House staff's enthusiasm for transparency reform waned as political necessities grew.

"As government becomes ever bigger, more extensive, the political necessities that result from that creates greater pressure within government to be less transparent," Tapscott said. "At the same time, more and more people become more interested in what the government is doing. We're approaching a point where it's going to be difficult to resolve that in a logical, orderly manner."

"The problem is they relied on the agencies to do this, to go ahead and follow what they said, and they didn't reckon with the fact there is no one in the executive branch with clear, accepted authority to enforce compliance from the agencies," said Patrice McDermott, the executive director of

"It's not just the regulations but in all aspects of FOIA," she continued. "It falls through the cracks."

A Bloomberg investigation found that "19 of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information."

"In all, just 8 of the 57 federal agencies met Bloomberg’s request for those documents within the 20-day window required by the Act," Bloomberg reported in September 2012.

An August 2012 Washington Post analysis found that early freedom of information progress by the Obama administration "stalled and, in the case of most departments, reversed in direction."

The number of FOIA requests denied in full due to exemptions rose more than 10 percent last year, to 25,636 from 22,834 the previous year, according to the Post’s analysis.

FOIA lawsuits have also risen under the Obama administration.

"I think if agencies were updating their regulations and complying with the law better, some of those lawsuits wouldn’t be necessary," McDermott said.

Attendees said the culture and mindset of agencies regarding transparency varies widely across the federal government. Many agencies are suspicious, if not openly hostile, of perceived encroachments on their territory.

For example, in 2012 the Environmental Protection Agency, the Department of Commerce, and the National Archives and Records Administration launched a cross-agency FOIA portal, the first of its kind. Watchdog groups hailed the project as a model for the future.

Only three agencies collaborated on the project, however.

"Initially, there was a lot of resistance from Department of Justice on this," said Anne Weismann, chief counsel of CREW. "Without their support, it was a real uphill battle to get this thing off the ground. I'm sad to say part of this resistance was turf wars."

"It's not a simple process," said Kirsten Mitchell, a management and program analyst for the Office of Government Information Services (OGIS). "That's been our observation from the agency side."’

Lisa Ellman, the chief counselor for the White House Open Government Partnership, said the Obama administration has made great strides in increasing transparency, such as posting the White House visitor logs.

Sean Moulton, the director of federal information policy for the Center For Effective Government, said there were several bright points in the first term of the Obama administration. He pointed to enhanced protections for government whistleblowers, a new review of the classification guide, and a new scientific integrity policy.

"But for every one of these accomplishments there seems to be an asterisk," he said. "It's almost sort of ridiculous."

For example, emails revealed that lobbyists sometimes meet with senior White House staff in a Caribou Coffee cafe across the street from the executive mansion to avoid being included in the visitor logs.

The White House has also prosecuted a record number of government whistleblowers, argued against protections for journalists in court, and jealously guarded details of its targeted drone program. The administration also defended the use of state secrets.

Outgoing Environmental Protection Agency administrator Lisa Jackson used a secret email address to conduct official business—a possible violation of FOIA disclosure laws.

"I don't understand some of the fights the White House picks if their default is in favor of transparency," said Josh Gerstein, a reporter for Politico.

Attendees said transparency reform involved more than just improving government websites or FOIA response times.

"The reality is that government transparency writ large isn't a single policy or aspect of implementation, it's the way we want government to be," Moulton said. "The real goal of a lot of these efforts is to change the way government perceives its way of doing business."

The conference included one visible reminder of how far transparency advocates have to go in their quest to change the mindset of government.

Metcalfe invited the Justice Department Office of Information Policy, which is responsible for encouraging agency compliance with FOIA regulations, to participate in the conference panels. He left a chair open on the dais, should an office staffer show up.

The chair remained empty for the whole day.