Poster for the Open the Government coalition's forum at the National Press Club Wednesday, March 19, 2008 1:00pm- 2:30pm, which you can view online, if you register here. See the bottom of this post for more information.
Besides being Saint Patty's day, March 17 is the kickoff for Sunshine Week ( although events started earlier in the month), during which journalists promote through their writing the idea of open government. There had been quite the media blarney over the signing on December 31 of the “Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007,” (first introduced and passed in the Senate in August 3, 2007 as Pat Leahey's (D-VT) S. 849, but held at the House desk an later re-introduced and passed unanimously December 14 as S. 2488 and passed by the House on a voice vote on December 18 (thus ironically hiding the voting record.)
But as Aftergood noted on January 2, 2008, while the amendment to the Freedom of Information Act (FOIA)
makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.
One thing it does not do, however, is alter the criteria for secrecy and disclosure. Whatever records that a government agency was legally entitled to withhold before enactment of the “OPEN Government Act” can still be withheld now that the President has signed it.
The law … restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm...The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.
As Aftergood pointed out, the original House version of the OPEN Government Act establishing a “presumption of openness” was stripped prior to passage. This led toHenry Waxman (D-CA) statement on the House floor on December 18 that the final legislation
does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret.
Rep. Tom Davis (R-VA) applauded that
the provision repealing the so-called Ashcroft memorandum was eliminated…. The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm...I think preservation of the Ashcroft policy is the right policy to adopt in the current environment.
AP added a correction finally on January 4, which only the Washington Post ran. And, as I reported in "Mr. Unitary Executive's FY 2009 Budget Bypasses Congress," and reported by Rebecca Carr in the Austin American-Statesman on February 4, since signing the bill, Bush has eliminated the FOIA ombudsman position at the National Archives which was central to the law.
Sharon Weinberger of Wired had no blarney extolling civic virtue today, when she instead, writes of her travails in trying to FOIA requests. And while nowhere near as detailed or cynical, The Houston Chronicle, taking to heart James Madison's statement that,
A popular government without popular knowledge or the means of acquiring it is but a prelude to a farce or a tragedy or perhaps both.
In an era when the most powerful officials in the nation state that they have the right to conduct official business in secret, where it can't be known by the people they serve, the wonder is that the other 26 percent of those surveyed are not alarmed.*
Most government secrecy is not to protect national security or ensure government integrity. Its purpose is to protect officials from public scrutiny, embarrassment or even prosecution.
The Bush administration contends that presidents can get good, candid advice only in confidence. This premise rests on the nonsensical assumption that the best advice presidents receive would be disadvantageous and humiliating to the president or the adviser if the public learned of it.
Pat Leahy is attempting to strengthen FOIA again, having introduced Open FOIA Act of 2008.
See Carr's March 12 entry for more information.
So here's the line-up for Government Secrecy: Censoring Your Right to Know
The Secret Executive -- What Can Congress and the Public Do?
- Ann Beeson, Director of U.S. Programs at the Open Society Institute and previously Associate Legal Director of the American Civil Liberties Union
- Mickey Edwards, Director of the Aspen Institute-Rodel Fellowships in Public Leadership and former Republican member of Congress from
- John Podesta, President and Chief Executive Officer of the Center for American Progress, and former Clinton Chief of Staff
- Patrice McDermott, Director of OpenTheGovernment.org will moderate.
Citizen Self-Help: Finding the Information You Need