Critics say Obama's transparency pledge has fallen flat. Obama's muddy transparency record

President Barack Obama set a high bar for open government, and he set it quickly.

A minute after he took office, the White House website declared his administration would become “the most open and transparent in history.” By the end of his first full day on the job, Obama had issued high-profile orders pledging “a new era” and “an unprecedented level of openness” across the massive federal government.


But three years into his presidency, critics say Obama’s administration has failed to deliver the refreshing blast of transparency that the president promised.

“Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it,” said Katherine Meyer, a Washington lawyer who’s been filing FOIA cases since 1978. “This administration is raising one barrier after another. … It’s gotten to the point where I’m stunned — I’m really stunned.”

David Sobel, senior counsel at the Electronic Frontier Foundation, said that “despite the positive rhetoric that has come from the White House and the attorney general, that guidance has not been translated into real world results in actual cases. … Basically, the reviews are terrible.”

Open-government advocates say some administration practices are actually undercutting Obama’s goal. Among their complaints:

• Administration lawyers are aggressively fighting FOIA requests at the agency level and in court — sometimes on Obama’s direct orders. They’ve also wielded anti-transparency arguments even bolder than those asserted by the Bush administration.

• The administration has embarked on an unprecedented wave of prosecutions of whistleblowers and alleged leakers — an effort many journalists believe is aimed at blocking national security-related stories. “There just seems to be a disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States,” ABC News correspondent Jake Tapper told White House press secretary Jay Carney at a recent briefing for reporters.

• In one of those cases, the Justice Department is trying to force a New York Times reporter to identify his confidential sources and is arguing that he has no legal protection from doing so.

• Compliance with agencies’ open-government plans has been spotty, with confusing and inaccurate metrics sometimes used to assess progress. Some federal agencies are also throwing up new hurdles, such as more fees, in the path of those seeking records.

• The Office of Management and Budget has stalled for more than a year the proposals of the chief FOIA ombudsman’s office to improve governmentwide FOIA operations.

Obama’s Open Government Initiative had all the makings of a signature presidential accomplishment: a poor track record by his predecessor, a public commitment by the president himself and a team of White House staffers devoted to fulfilling his vision.

A year ago, representatives of four open-government groups visited the Oval Office to give Obama an award for his “deep commitment to transparency.” (The event prompted some snickering because it was closed to the press and was omitted from Obama’s public schedule.)

But some of the groups that lauded Obama for his intentions have become increasingly frustrated about the administration’s record.

Last month, several frequent FOIA requesters filed a class-action lawsuit against the Central Intelligence Agency, alleging that it unlawfully impedes requesters by requiring them to agree to pay all fees without providing any cost estimate, by imposing new fees for declassification and by refusing to release records in electronic form.

Also in February, five nonprofit groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, asserted that the Department of Homeland Security was demanding thousands of dollars in “exorbitant fees” to process FOIA requests, even though the groups regularly obtained waivers in the past.

The White House says Obama’s Open Government Initiative has made steady progress and that the administration’s track record on transparency is vastly superior to that of its predecessors.

“Over the past three years, federal agencies have gone to great efforts to make government more transparent and more accessible than ever, to provide people with information that they can use in their daily lives and to solicit public participation in government decision-making and thus tap the expertise that resides outside of government,” White House spokesman Eric Schultz said in a statement that also noted the transparency award Obama received last spring.

“While creating a more open government requires sustained effort, our continued efforts seek to promote accountability, provide people with useful information and harness the dispersed knowledge of the American people,” Schultz said.

Obama has broken new ground in some areas, such as his unprecedented release of more than 2 million White House visitor records, though the administration is still fighting in court against rulings that would grant the public a legal right to such data.

The administration has issued reports pointing to transparency achievements, such as scaling back use of FOIA exemptions to withhold records and reducing backlogs from levels in previous administrations. One White House report last fall cited a 10 percent reduction in FOIA exemptions claimed and said backlogs at the Army were down 68 percent.

However, the accuracy and significance of some of the data are disputed. A Justice Department report published last month said the FBI’s oldest pending FOIA request, as of last fall, was from July 2009. That startled open-government groups, which say some of their requests from as far back as 2005 have not been fulfilled. The FBI says the requests were “closed,” though the groups may not always have been notified.

Many of the open-government advocates interviewed for this story said the White House commitment had real energy until the drive’s internal champion, Deputy White House Counsel Norm Eisen, was nominated in June 2010 to be ambassador to the Czech Republic. Without Eisen at the helm, Obama’s transparency efforts foundered, activists said.

The Sunlight Foundation’s John Wonderlich, who described Obama’s transparency pledges as “partially fulfilled,” recalled a meeting before Eisen left in which he handed responsibility for the issue to then-White House Counsel Bob Bauer.

“Their line was, ‘Remember, Bob Bauer is the White House counsel. It’s a big step up. These issues will really be addressed,’” Wonderlich said. “We never heard anything again from Bauer. … The transparency portfolio did get upgraded: It was upgraded to the president’s senior political staff who aren’t specialists in it and view it as a liability.”

A spokesman for the U.S. Embassy in Prague said Eisen was unavailable to comment for this story. Bauer, who left the White House for private practice in June 2011 but serves as chief legal counsel to Obama’s reelection bid, also declined to comment.

In the national security arena, Obama initially seemed intent on fulfilling his “new era of transparency” vow. In April 2009, over the objections of CIA officials, he ordered the declassification of Bush-era Justice Department opinions authorizing the use of aggressive interrogation tactics against terrorism suspects. The memos detailed techniques ranging from slapping to waterboarding, along with the legal analysis that concluded the actions were not torture under U.S. law.

However, that bout of transparency quickly faded. Within weeks, Obama moved to withhold photos of U.S. troops abusing detainees overseas. Last year, he personally decided to keep secret photos of Osama bin Laden’s body and his burial at sea.

In both cases, Obama argued that releasing the information could risk a backlash that might put Americans at risk — including troops on the frontlines in Iraq and Afghanistan.

But critics say the decisions signaled that the national security realm was largely immune from the administration’s openness efforts.

“That creates this untouchable bubble of non-accountability. In turn, everyone wants to be inside the untouchable bubble, so the bubble grows,” said Nate Jones of the National Security Archive, a non-profit group that compiles and publishes declassified government records.

“When it comes to the arena of national security, there’s a very high level of frustration verging on anger” on the part of requesters, said Openthegovernment.org’s Patrice McDermott, one of the advocates who honored Obama last March.

Open-government advocates also cringed when a Justice Department lawyer told the Supreme Court last year that the administration disagrees with decades of court rulings that exceptions to FOIA should be “narrowly construed” because of the law’s presumption in favor of transparency.

“We do not embrace that principle,” Assistant Solicitor General Anthony Yang told a stunned Justice Antonin Scalia.

“It’s just incredible for an administration that says it’s committed to an unprecedented level of transparency to be telling the Supreme Court, ‘Hey, we don’t accept long-established Supreme Court precedent favoring disclosure.’ It’s just jaw-dropping,” Sobel said.

One major player in the early stages of Obama’s open-government drive now believes the program was misbranded.

“In retrospect, ‘open government’ was a bad choice,” former Deputy Chief Technology Officer Beth Noveck wrote in The Huffington Post last year. “It has generated too much confusion. Many people, even in the White House, still assume that open government means transparency about government.”

Noveck, who headed the Open Government Initiative from the inauguration until January 2011, noted that the White House has subtly shifted from the “open government” theme, setting up a new Web page last year focused on “good government.” A few months later, it rebranded the effort again, as “21st Century Government.”

Noveck, who returned to her teaching post at New York Law School, said in an interview that some open-government advocates have put too much emphasis on the Freedom of Information Act and revealing national security secrets. She said they don’t give the administration enough credit for work at agencies such as NASA and the Department of Health and Human Services to make government data public and to harness new technology to involve average citizens.

“This is about a whole paradigm shift in the way that government gets information, makes decisions and implements those decisions and is not simply a rehash of a debate about national security — a debate in which we just go in circles with the same old players and the same old arguments,” Noveck said.

In the FOIA area, some significant innovations are underway, such as a joint effort by the Commerce Department, the Environmental Protection Agency and the National Archives to create an online system for requests — and to make FOIA responses available to everyone via the Web.

However, broader proposals to reform the handling of FOIAs have been awaiting OMB approval since February 2011. “They are not stuck,” said Miriam Nisbet, who serves as the federal government’s chief FOIA ombudsman. “We are moving.”

Sobel said he isn’t seeing the progress.

“Cultural change within a bureaucracy is difficult,” he said. “And you don’t make it happen just by issuing proclamations, and that appears to be all they’ve done.”