Secrecy Report Card Gives Modest Grades to Bush and Obama

On Sept. 8, OpenTheGovernment.org, a coalition of 70 open government advocates, released its sixth annual Secrecy Report Card. Focusing on 2008, the report card serves primarily as a final assessment of the Bush administration but also addresses early actions of the Obama administration. Overall, the report notes a decrease in secrecy at the end of the Bush years but concludes that greater efforts are needed to increase federal transparency.

According to the report, original classification decisions under the Bush administration decreased by 13 percent to the lowest level since 1999. Once information has been designated as classified by an original classifier, many other documents can be derivatively classified. Despite the drop in original classifications, derivative classification decisions increased. Further, the number of pages being reviewed for automatic declassification declined by 14 percent, and the number of pages declassified declined by 16 percent in 2008.

The report also indicated that the federal government spent a little less during the last year of the Bush administration on both classification and declassification. However, the proportion of declassification spending to that of classification remained grossly disproportionate. According to the report, "for every one dollar the government spent declassifying documents in 2008, the government spent almost $200 maintaining the secrets already on the books, a 2 percent increase from last year."

The report included a special section on openness and secrecy trends in the Obama administration, for which the coalition gives a mixed review. The new administration has taken several steps toward its promise of "an unprecedented level of transparency." One of these was the collaborative and participatory online policymaking process for the Open Government Directive. Using social media tools, the government solicited public input on potential open government recommendations. This was the first effort to use the Internet to widely and actively engage the public in policymaking. However, the report indicates that there is an "undefined connection between the recommendations developed during the process and what will be presented to the President." This raises concerns about the effectiveness of the process, but the Open Government Directive has not yet been released, so it is impossible to know how public input factored into policymaking at this time.

The Obama administration also issued a new Freedom of Information Act (FOIA) memorandum that directs FOIA to be applied with a presumption of openness and agencies to release records in anticipation of public interest. Moreover, the new memo included important language about enforcement and accountability. The memo orders that the chief FOIA officers of each agency recommend adjustments to agency transparency practices, personnel, and funding as necessary. The report cited two lawsuits, CREW v. EPA and CREW v. Council on Environmental Quality, in which the government released material previously withheld under Exemption 5 of FOIA after reviewing it under the new guidelines.

The Secrecy Report Card also noted some actions that cloud the Obama administration’s early transparency initiative. The Obama administration has issued seven signing statements, most of which challenge specific provisions of law. However, the report admits Obama's signing statements have "not been as expansive or specific as his predecessors." In addition, the administration has also maintained the Bush administration’s claims of state secrets in three court cases and has argued for its constitutionality in an amicus brief to the U.S. Supreme Court in a fourth case. Rooting the privilege in the Constitution, according to the report, "could hinder Congress’s legal ability to regulate it."

Additionally, the 2009 report card includes a section highlighting fiscal transparency efforts. In particular, the report is critical of the differing commitments to transparency in the financial bailout and stimulus legislation. According to the report, FinancialStability.gov, the public face of the bailout, lacks reports from Treasury, the Federal Reserve, the Federal Deposit Insurance Corporation, and other executive branch agencies. The public face of the stimulus, Recovery.gov, however, is far more comprehensive, providing "information for accountability from a variety of sources."

Overall, the report presents a mixed record for both the last year of the Bush administration and the first few months of the Obama administration. Patrice McDermott, Director of OpenTheGovernment.org, stated, "Promising trends began to develop in the last year of the Bush Administration, but we have a long way to go to return to the level of government openness and accountability that existed before the September 11 attacks."

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