Open, Accountable Government
After Four Years, Obama Delivers Policy Leadership on Transparency, but Agency Implementation Is Inconsistent
by Gavin Baker, 3/12/2013
Four years ago, President Obama entered office offering an inspiring vision for a more open and participatory government. A new report by Center for Effective Government staff credits the Obama administration for using its first term to construct a policy foundation that could make that vision a reality. However, the actual implementation of open government policies within federal agencies has been inconsistent and sometimes weak.
Delivering on Open Government: The Obama Administration's Unfinished Legacy was released on March 10, the beginning of Sunshine Week. The report examines progress made during President Obama's first term in three areas: creating an environment within government that is supportive of transparency, improving public use of government information, and reducing the secrecy related to national security issues.
Improving the Accessibility and Reliability of Public Information
The administration's strongest performance was in its use of technology to make information more available to the public and more user-friendly. Officials encouraged agencies to use more social media, launched new websites, created mobile apps, and overhauled older online tools. More detailed information about federal spending was made available to the public. Agencies are now required to transition to electronic records management – although they have been given a long timeframe for the shift. Administration policy raised the bar for delivering information under the Freedom of Information Act (FOIA). These were long overdue steps that will modernize how government communicates to and shares information with the public.
Creating an Environment that Supports Open Government
Despite policy guidance from the White House, the implementation of open government reforms at the agency level has been uneven, and few agencies appear to have embraced the practice of open government enthusiastically. Some agencies produced very vague open government plans for themselves. Many have not followed the White House's lead in making information about basic operations open to the public or even posting visitor logs. Several produced weak policies to protect the integrity of scientific information and the rights of government scientists to share their work. Protections for whistleblowers were strengthened, but the administration has also taken an aggressive approach to prosecuting leaks.
An example of the inconsistent implementation of open government goals is the mixed success agencies have had meeting FOIA deadlines for providing information in response to public requests. The 2009 Open Government Directive instructed agencies with a significant backlog of FOIA requests to reduce their backlogs by 10 percent each year. But of the 11 cabinet agencies with more than 500 backlogged requests in fiscal year 2009, only three met the 10 percent reduction goal each year: the Departments of Health and Human Services, the Interior, and the Treasury. Three other agencies met the goal in two years out of three, while the remaining five agencies met their goal in only one year. There was no year in which every agency met the assigned goal. At the end of 2012, nearly 60,000 backlogged requests remained in these 11 agencies – a total reduction of less than nine percent compared to FY 2009.
The Obama administration's most glaring open government shortcomings involve national security secrecy. The administration has relied on state secrets or secret laws as heavily as the George W. Bush administration, to the disappointment of open government advocates and civil liberties defenders. Good policies were established on guidelines for declassifying documents, but without changing the process for declassifying documents or significantly increasing staff, it will take years to get through the time-consuming process of reviewing all classified documents. The new framework for controlled unclassified information (CUI) contains critical reforms but remains at an early stage of implementation.
Moving Forward for the Next Four Years
While the Obama administration deserves praise for the important work it has done to build a platform for open government in its first term, the job is unfinished.
To secure its legacy as "the most transparent administration in history," the Obama administration has three major tasks. First, the administration needs to redouble its efforts to ensure that existing transparency policies are fully implemented within agencies. Second, it must address a few significant gaps in its policy framework to ensure that claims of national security do not trump the imperative of democratic accountability. Third, the administration should work with transparency champions in Congress to codify into law and further strengthen the open government policies initiated through executive actions.
To bolster the environment for open government, the administration should assign a senior official in the White House to oversee the implementation of open government policies – and ensure that official has the authority to get the job done. Likewise, agencies should develop implementation plans for key open government policies and assign a senior official the responsibility for seeing the plan through.
Congress could also play a more active role in supporting open government practices. Legislation should be passed to codify important reforms, such as the DATA Act and reforms of FOIA and declassification. Relevant committees should improve oversight of current open government policies and implementation.
To continue to improve the accessibility and reliability of public information, agencies should modernize their IT systems to create and manage information digitally, and the administration should establish near-term benchmark requirements for transitioning to electronic records. The White House should take an aggressive stand to improve agency compliance with FOIA and ensure the Justice Department's litigation stance actually supports transparency. It should establish minimum standards of disclosure for all agencies and ensure they adhere to a strong norm: proactive disclosure of public information.
To reduce inappropriate secrecy related to national security, the administration will need to intensify its review of agency classification guides and pursue policy and statutory reforms to streamline the declassification process. The administration's state secrets policy should be revised to require independent court reviews of secret evidence. The Justice Department should renounce the use of criminal prosecution for media leaks and protect the First Amendment rights of public employees. Finally, the administration should order an end to secret legal opinions and directives that are used to shield controversial decisions from oversight and legal challenge.
With a stepped-up effort at implementation in its second term, the Obama administration can deliver on the policy platform it built throughout its first term and truly realize the goal of being "the most transparent administration in history."