Scaling Up Transparency: New Approaches Could Yield Greater Openness

10/23/2012

Two reforms launched by federal agencies this month represent new approaches to more efficiently releasing government information. New websites to publish declassified documents and records released under the Freedom of Information Act (FOIA) could set new precedents and improve on older practices by making the information available to everyone online.

On Oct. 3, the National Archives and Records Administration (NARA) established a new portal on declassification activities at the Archives, including for the first time publishing documents released through the Interagency Security Classification Appeals Panel (ISCAP). Similarly, on Oct. 1, a group of agencies launched FOIAonline, which publishes documents released under FOIA by participating federal agencies. Both sites transform older processes into modern, open ways of releasing information that could lay the foundation for further reforms.

Opening the Declassification Process

The democratic principles of our country require that the people be informed of the activities of our government. However, in order to protect national security operations, it is necessary for government to sometimes withhold certain information from the public. President Obama's 2009 executive order on classified national security information acknowledged these competing values and provided a framework for balancing them.

To strike the proper balance, classification has to be temporary and narrowly limited. Open government experts have complained for years that agencies needlessly "overclassify" information and fail to promptly declassify information, harming both the public's right to know and agencies' ability to protect truly sensitive information.

Obama's 2009 order included several reforms intended to reduce overclassification and speed declassification. One of those reforms took effect this month with the release of the new ISCAP website.

ISCAP makes the final decision on what materials will be declassified after members of the public request that information be declassified. Like FOIA requests, agency decisions on these requests and any documents released in response to a request have traditionally been delivered only to the requester, not the general public.

The new ISCAP website changes this. To implement the executive order requiring ISCAP to inform the public of its decisions, the website contains documents that have been declassified and released, as well as a brief description of the released documents, the documents' date, and affiliated agency, along with an identification number.

Opening the FOIA Process

FOIAonline, a new website launched recently by several federal agencies, moves the FOIA process in a similar direction. Like the ISCAP website, FOIAonline allows participating agencies to publish released documents online, making them available to the general public.

FOIAonline also provides information about requests themselves, including a description, the affiliated agency, and a tracking number. In addition, FOIAonline identifies the requester, the date the request was received, and the date the request was closed. The site also includes information about cases that are still underway, not just those that have been closed.

Further Opportunities

Both sites lay the foundation for greater openness of their respective processes. Realizing additional opportunities could further advance transparency and efficiency; an important next step would be to publish actual decisions on the ISCAP site and FOIAonline. Publishing released documents provides greater access to information, but it does not explain the rationale behind the decision.

Obama's executive order directs agencies to consider the ISCAP's decisions in conducting their own actions. However, this cannot be fully implemented without publishing those decisions, as the Federation of American Scientists' Steven Aftergood and the National Security Archive's Lauren Harper point out.

Similarly, agency response letters to FOIA requests and appeals often contain detailed explanations of the agency's rationale for its decision, but so far, agencies do not appear to be publishing any rationale for their decisions on FOIAonline.

Publishing FOIA and ISCAP decisions would help future requesters understand how agencies decide certain types of requests, which could help in preparing their own requests and appeals. In this sense, a published record of decisions could be seen as a kind of administrative case law to inform future decisions. For instance, the Brennan Center for Justice's Elizabeth Goitein has called for giving ISCAP decisions precedential value.

Applying the power of precedent, whether formally or informally, could support greater efficiencies in these systems by reducing the need to "re-litigate" past decisions. Instead, requesters and agencies could more easily be informed by these decisions. If the precedents set are good – and ISCAP appeals have a higher success rate than appeals to individual agencies – the overall result would be a rising tide for openness.

Image in teaser by flickr user ctj71081, used under a Creative Commons license