"President Obama sort of pulled the rug out from all of us last week," declared Open the Government director Patrice McDermott, opening a panel at American University's conference on Information Policy in the New Administration. "We're very happy that he did," she quickly added.

It's a vertiginous moment for the government watchdogs and transparency advocates who gathered Thursday to discuss the prospects for broader access to information under the Obama administration. After eight years of struggling to extract scraps of data from the executive branch, the new occupant of the Oval Office superseded many of their central talking points within the first few days of his term, issuing an executive order directing federal agencies to err on the side of disclosure, a stark reversal of longstanding policy that McDermott pithily summarized as "when in doubt, leave it out."

That doesn't mean they're breaking out the champagne just yet, however, since as McDermott noted, "memos are wonderful... but actually getting the agencies to do it and actually getting them implemented is another whole kettle of fish." Executive leadership is important, but it faces a culture of concealment in federal agencies that is as much a function of institutional incentives as formal directives. For example, when a report from the Government Accountability Office was supposedly found in a cave in Tora Bora, it "frightened the hell out of the executive branch of the government; they didn't want to be the one whose information was found in Al Qaeda's hands."

One way of beginning to change that tone, she suggested, would be to direct agency heads to review the "massive, massive amounts of information" pulled from government websites after the September 11th attacks to determine what was removed and how much can be restored. Still more important, she argued, would be the promulgation of rules and standards for "controlled unclassified information" (CUI). Though guidelines and procedures for formal classification have been tweaked and developed over the decades, CUI designation remains far more discretionary, and according to McDermott, seldom gives much weight to the public interest—and, indeed, the potential security interest—in dissemination of information.

Challenges for transparency

Though heartened by the new administration's enthusiasm for technology—and the decision to let the president keep his Blackberry, with electronic communications subject to the Presidential Records Act—she noted that the "parlous" state of government technology more broadly would create challenges for transparency. To be able to disclose information, after all, you need a database that's well-maintained enough for people to be able to find that information. Already, she said, the federal historical record is "potentially in shambles, but we really don't know what the extent of the problem is." Openness will only exacerbate the problem, as agencies brace for an unprecedented influx of digital comments and communications from citizens.

Despite all this, McDermott said her colleagues were "walking around with big grins on their faces," perhaps because of signals cited by David Sohn of the Center for Democracy and Technology that "this administration regards transparency as a meta-issue that needs to pervade all their other decisions." At least one of those signals, however, was somewhat dubious: Sohn joined a number of bloggers in hailing the newly Spartan "robots.txt" exclusion file at WhiteHouse.gov as evidence of a new commitment to transparency, though as Ars and others have pointed out, the previous list, while longer, was not especially nefarious. Sohn did agree, however, with another argument we've recently made: "The government policy on the use of cookies and other tracking technology on government websites goes back to about 2000 and is really very restrictive," he noted. "Being able to identify a repeat visitor to a site can also help yield some functionality gains and help make sites more usable and more user friendly."

While he joined the general chorus of praise for Obama's new Freedom of Information Act directive, Sohn also hoped the government would continue its progress toward "affirmative disclosure"—putting information online automatically, without waiting for a FOIA request. That, he noted, is a bigger task than it might appear, since it means every government employee who creates any sort of document would need to write with an eye toward future disclosure, which would entail (for instance) marking private or personal information that might be included in a strictly internal document, but should be redacted before public release.

Such affirmative disclosure would likely mean taking an architectural approach to transparency—that is to say, building government technology with disclosure in mind at the beginning rather than an add-on after the fact, in the same way that best practices would require incorporating privacy and security criteria at the design stage. This will also, Sohn believes, require changes to the Privacy Act of 1974, written "for a world where the government's records on people were held in paper-file cabinets alphabetized by name or numerically by Social Security number."

Cultures of secrecy

For Michael German, a former FBI agent who now hangs his hat at the American Civil Liberties Union, the need for transparency is greatest in the very place it's least present: in the intelligence and law enforcement agencies. Citing the ACLU's transition recommendations on overclassification, German called for an end to the policy of reclassifying previously declassified documents, and ending the use of "control markings" as a substitute for formal classification.

Invoking a famous speech by John F. Kennedy condemning excessive secrecy at the height of the Cold War, German asked rhetorically whether the war on terror truly presented a greater existential threat, or a greater corresponding need for secrecy, than a nuclear-armed Soviet Union. But German also stressed that the culture of secrecy couldn't be blamed entirely on the Bush administration, reminding the audience that the 1997 Moynihan Commission had identified many of the same problems.

Thanks to the recent explosion of fusion centers, German argued, the federal penchant for secrecy is infecting state governments. He pointed to a recent case in Virginia where state FOIA laws were watered down to exempt unclassified documents bearing "control markings" used to guide state officials in treating unclassified documents with care. The purpose of these designations, German insisted, was to encourage the sharing of unclassified but sensitive information, not to force states to recognize them as a new form of de facto classification.

A lesser-known breakthrough



While the new administration's FOIA directive has been widely discussed, Thomas Devine of the Government Accountability Project pointed to a lesser known "breakthrough in transparency through accountability," lost in the shuffle of the stimulus bill making its way through Congress. Tucked away in that massive legislation is a major overhaul of the Whistleblower Protection Act, the federal statute that protects government workers who come forward with evidence of official malfeasance.

The new rules, Devine enthused, would set a "global gold standard for freedom of speech for government employees—freedom of speech where it counts." The current law, he said, had been badly watered down by court ruling which had dramatically narrowed the class of employees protected by the law. Currently, for example, the statute only protects the first person to draw attention to an alleged misdeed, so that "If you're not the Christopher Columbus of your scandal, so much for whistleblower protections." The reform would also protect those who blow the whistle on the basis of a "reasonable belief" they've discovered wrongdoing, rather than requiring (in the court's unusual choice of words) "irrefragable" proof.

Ensuring that the Senate ratifies the House language was clearly Devine's top priority. A close second, however, was to "repatriate the exile whistleblowers who were purged" during the previous administration, which he said would be "the single best step the president can take to earn the confidence of cynical people whose professional lives have been ruined."

Transparency within government

Where most panelists focused on government transparency to the public, Sharon Bradford Franklin of the Constitution Project argued that it was equally important to restore transparency within government, which she said had been eroded under the Bush administration's expansive view of executive authority.

In particular, she cited the highly limited "Gang of Eight" briefings given to congressional leaders on the National Security Agency's program of warrantless surveillance. Such limited disclosure, she argued, is meant to be restricted to narrow and exceptional circumstances. Similarly, when that program was finally placed under the aegis of the secret FISA court, the administration determined that only the House and Senate intelligence committees would be privy to the orders, usurping what Franklin said was Congress' prerogative to determine its committee jurisdiction.

If the panelists themselves seemed a bit giddy, despite their best efforts to retain a measure of skepticism, their remarks highlighted just how difficult it will be to achieve genuine transparency, even assuming a high-level commitment to that end. Aside from the problem of reforming entrenched institutional cultures not easily altered by presidential directive, the new administration's own enthusiasm for new communications technologies presents novel problems of information management that will intrinsically present hurdles to openness, whether or not that's the intent. So take heed, watchdogs: a spiffy new website and a presidential smartphone are good signs, but they're posted at the side of a very long road.