Sunshine Week starts with a new report from the National Security Archive and the Knight Foundation that finds only 49 of 90 agencies have adopted 'concrete steps' to improve their responsiveness to Freedom of Information Act requests. This is incredibly disheartening, though an improvement on the numbers from last year's study that found 13 of 90 agencies following up. The agencies' failure to meet even the administration's low bar is unacceptable. The two 'concerte steps' are simply updating the language in FOIA training documents to presume openness and to assess whether resources for compliance are adequate.

The report stems from Obama's Executive Order that called for greater FOIA openness [link], one of the first official acts he made as President, a follow-up memo from Attorney General Eric Holder detailing the new principles on FOIA [pdf link] and another memo a year later from former Chief of Staff Rahm Emanuel and former Counsel to the President Bob Bauer asking agencies to please take the baby steps previously promised [pdf link].

“At this rate, the president’s first term in office will be over by the time federal agencies do what he asked them to do on his first day in office,” commented Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, which funded the study. “Freedom of information laws exist to help all of us get the information we need for this open society to function. Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws.”

Modeled after the California Sunshine Survey and subsequent state “FOI Audits,” the Archive’s series of Knight Open Government Surveys started in 2002 and use open government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Knight Open Government Surveys led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests.

Among the varying responses from agencies, the most stunning result was the U.S. Postal Service saying it had "no responsive records" and never even received the Emanuel-Bauer memo! Below is a chart of the ratings of each agency:

White House Press Secretary Jay Carney was asked a series of questions today based on the Politico story I blogged about earlier.

Carney refuses to answer whether the White House has any guidance on when it's appropriate to schedule meetings that occur outside the reach of the visitor logs records. I doubt there's any formal guidance, but instead that whoever sets up a meeting thinks about the meeting's potential disclosure in the same way you might consider who is invited, how big the meeting might be, or what the agenda should be. In other words, these decisions are probably made as a matter of course.

Rather than engaging with detail in the question, or sidestepping it altogether, Carney attacks the idea that anyone would question the administration's commitment to transparency:

The suggestion that we’re not being transparent is laughable given the unbelievable precedent this administration has set in its -- closing the door, the revolving door, and releasing these records.

The tone of this response reads to me like insecurity.

If the White House feels vulnerable on lobbying reform, then they should avoid obfuscating on real questions about how the visitor logs policies work.

Of course, the fastest way to make these questions go away is to say that the visitor logs release is incidental (not essential) to the lobbying disclosure fight, and that Obama is going to actually push for lobbying reform in Congress.

The back and forth in question is below:

Q Given the President’s commitment to transparency, is there any guidance White House officials get about when it’s appropriate to meet off campus with a lobbyist and when a lobbyist meeting should be on campus?

MR. CARNEY: This administration has taken extraordinary actions to be transparent. I think this question stems from a story that, frankly, was absurd. We release hundreds of thousands of records voluntarily, a policy instituted by this President because of his desire for transparency -- something no administration had ever done before. The decisions about where -- and those records are available to every American citizen online to be reviewed, and all different types of people come to the White House complex for meetings on issues. And our level of transparency and disclosure is unprecedented because the President believes deeply in it.

What I would say is that, as any of you who have walked around this complex know, been in the West Wing -- not like the TV show; very small space, very few meeting rooms. The Old Executive Office Building -- the Eisenhower Executive Office Building, a third of which has been under renovation since we’ve been here -- very limited space. Jackson Place is a White House conference center -- so designated -- and therefore when we have large meetings sometimes we use that space if there are no spaces here.

So that’s --

Q But would you agree that there’s effectively a transparency loophole here, if the goal is to show when lobbyists, powerful interests, are meeting with White House officials, that right now it’s routine for White House officials to meet off campus with these people and there’s no daylight on that?

MR. CARNEY: It is routine for the White House officials to meet with all types of people, including lobbyists, and frequently here. The suggestion that we’re not being transparent is laughable given the unbelievable precedent this administration has set in its -- closing the door, the revolving door, and releasing these records. There are no -- the WAVES system, which is the system that produces the records, operates in certain buildings and not others. And for those decisions, how that operates and why, I refer you to the United States Secret Service. But the principle here is the unprecedented level of transparency that we have provided because we believe deeply in it.

Q Would it be inappropriate for a White House official to intentionally arrange a meeting off campus to not be caught by the WAVES records?

MR. CARNEY: Look, we have meetings with all sorts of people. We have them here. Those records are available.

Q But would it be appropriate if you choose to go off campus because you didn’t want it to show up in the files? It’s yes or no.

MR. CARNEY: The guiding principle here is transparency, and we believe that -- nobody is, that I’m aware of, is hiding where they’re meeting. The meetings that happen at Jackson Place, it’s a big meeting place and that’s where --

Q If it’s so big, why not change the policy and release those names --

MR. CARNEY: We do not control where the WAVES is. And I’m not going to -- in terms of --

Q You could release them separately. You could change the policy.

MR. CARNEY: Well, Chip, look, I’m not aware what policies might be instituted in the future. But what I think is fundamentally important to remind you of is that we release information that has never been released before. I think you probably remember, you were covering the previous administration. They went to court, to the Supreme Court, to prevent the disclosure of people who were meeting with the Vice President. We voluntarily release the records that are available to us. And we never said that there was a way to get every name in every meeting. The principle is disclosure, and we have gone to extraordinary lengths to make that happen.

Q Would you consider changing the policy to increase disclosure?

MR. CARNEY: Again, I don’t want to predict about future policies that may be put in place. I just want to remind everybody about what we’ve done and why.

In today's Politico, Chris Frates reports on how some lobbyists now apparently feel like they're being shuttled there instead of the White House complex itself in order to avoid their meetings showing up on the visitor logs.

They're probably right.

Without laws requiring real-time, online disclosure of lobbying activity, we're going to be left with piecemeal policies, and transparency rhetoric that reaches beyond reality.

And meetings with lobbyists will sometimes be scheduled to avoid disclosure.

Now, not all meetings are scheduled at these rooms in order to be hidden, of course. I've probably been to 10 meetings in the conference center in question (and I'm a lobbyist), and these of meetings are often meetings where the administration is trying to maximize disclosure.

But, of course, the White House plans some meetings in order to gain (or avoid) the public eye. Everything the White House does is done with public exposure as a primary consideration. As the article notes, the decision to have a phone call or have an email exchange is often done with an eye to FOIA laws -- emails create a record trail, and phone calls do not. As long as we don't ban phone calls, administration officials will continue to gravitate toward them for more sensitive, or frank communications. Given that context, I'd be shocked if administration officials weren't planning meetings' locations based on whether the meetings will be disclosed.

The problem, though, is that the White House has sold the visitor logs' release as an accountability mechanism.

Whenever the administration talks about taking on special interests, and taking on lobbying, they're giving one side of the story. Their comments should be annotated with the reality of Washington influence.

The visitor logs do provide an unprecedented view into the work and influence of the White House (as Paul Blumenthal's research shows), but it's also a system that's easily (and quite often) evaded. It wasn't designed as an accountability mechanism, but for managing White House security. And releasing the records wasn't designed to affirmatively take on lobbyists, but as a response to a CREW lawsuit.

Somehow, in time since the logs were first released, this has become a hallmark transparency achievement of the administration. It's certainly a transformative development, but Obama has started to hang his hat on it. He shouldn't. The visitor logs are a security system retooled as a disclosure system, and aren't a replacement for real lobbying laws.

As we get a clearer picture of what the visitor logs do, and what they don't do, we should focus harder on what we need to ask for: real-time, online disclosure of lobbying. And we should take the visitor logs for what they are, not what we're told they might be.

On June 15th, President Obama addressed the nation, referring to the oil spill and the failed Minerals Management Service, and said:

But it’s now clear that the problem there ran much deeper, and the pace of reform was just too slow.

Given that admission, we're surprised to learn that the White House is turning away from having a single dedicated staffer overseeing ethics and government reform, and shifting his portfolio to two others with other responsibilities.

If the administration's commitment to government reform was insufficiently focused in the face of the Interior Department's longstanding regulatory failures, how is it an appropriate response to divide responsibilities among multiple staffers?

Champagne corks are popping on K Street as the White House's ethics chief Norm Eisen is heading out with an appointment as ambassador to the Czech Republic. The New York Times reports that heavywieght Democratic lobbyist Tony Podesta is calling Eisen's departure, "the biggest lobbying success [lobbyists] had all year."

Eisen spearheaded major White House efforts to increase transparency and slow the movement from government to the lobbying sector. These projects included the online publication of White House visitor logs, lobbyist contact disclosure for Recovery Act projects and TARP money, the Open Government Directive and imposing tight controls on the hiring of lobbyists and the contacting of former officials turned lobbyists.

The ethics portfolio is being handed over to White House Counsel Bob Bauer, a Democratic Party fixture and no innovator in the ethics and transparency arena. Little more need be said aside from the ringing endorsement given by Podesta to Eisen's departure and Bauer's assuming his duties.

Podesta's crowing is the only warning signal we need to know that the very important transparency policies pursued by this administration are in serious danger.

Photo: Waldo Jaquith