Our conversation with Wired Italia: Evaluating open government with a broad lens matters
This month, Wired Italia published an extensive feature exploring open government and freedom of information under the Obama administration. Given the focus on the election and its publication in Italian, we hope can share with you some of our conversation given its consideration of whistleblowing, access and disclosure of information. (If you’re interested, you can put the link into Google Translate for a rough English translation.)
Wired Italia asked Sunlight for answers on a series of questions about open government, which we’ve provided in full below.
Despite claiming to be “the most transparent administration in history,” the Obama administration set new negative records when it comes to unfulfilled FOIA requests. How would you evaluate the relationship of this administration with transparency?
As we have explored, this Obama administration has received the highest numbers of FOIA requests in history at the same time it has denied them. Given years of research that shows the majority of FOIA requests to some agencies come from commercial entities, simply using the raw number of requests and denials is a flawed metric. The increase in partial disclosures also reflects increased use of the two most commonly used exemptions in the FOIA statute, Ex. 6 and Ex. 7(c), which relate to unwarranted invasions of personal privacy. We think that the legacy of the Obama administration on transparency should be evaluated using a much broader lens for open government than FOIA alone.
Was it a major change compared with the Bush era, for instance?
Q: A Vice investigation showed in March how the Obama administration also “strongly opposed passage” of the 2014 bipartisan FOIA reform. In your opinion, what’s the reason for this approach?
The documents that the Freedom of the Press Foundation received in response to its FOIA suit demonstrate that the Justice Department was actively lobbying Congress against making the Obama administration’s own FOIA policies into law, including the “presumption of openness” and foreseeable harm standards that the president and U.S. attorney general set out in memoranda issued in 2009.
To date, we have not seen a public statement by the Justice Department explaining its actions or opposition that goes beyond the arguments set out in those talking points regarding increased cost, the difficulty of carrying provisions implementing a data review or a FOIA portal, or the impact of legislation on the administrative burden agencies face. Fundamentally, legislative reforms confront agencies charged with administrating compliance with access to information laws with changes to their power and role within systems of governance that challenge the status quo and frequently subject their own performance to increased oversight and review.
Q: Overclassification and secrecy were also frequently debated and drone strikes are a good example. How did the administration perform in this sense?
The Obama administration has acknowledged the challenges that overclassification poses to government secrecy and accountability early on, issuing an executive order in 2009 that created a National Declassification Center at the National Archives and Records Administration, which began operating in 2010. To date, the NDC has declassified millions of records, although a backlog of hundreds of millions remains. After the Department of Justice streamlined its national security classification, the department’s Inspector General found that it is producing a diminishing number of secrets.
As the Federation of American Scientists noted in July 2016, a recent report by the Archives’ Information Security Oversight Office found that “the production of new national security secrets dropped precipitously in the last five years and remained at historically low levels last year.” The Obama administration has also been declassifying records as part of its international diplomacy efforts. With respect to the use of drones, the administration has not lived up the standards for proactive disclosure and transparency that the president set out in the Open Government Directive in 2009.
Q: Did the Snowden revelation had an impact of any kind?
Yes. After President Obama’s order, the intelligence community has disclosed a significant number of formerly classified documents, including legal opinions and interpretations of U.S. law, through its ICOnTheRecord blog.
Q: In your comprehensive analysis, you concluded that the Obama administration has a “mixed record” when it comes to transparency. What are the most successful points and the biggest problems?
As we have said, the Obama administration has made unprecedented releases of data online with a measurable impact on many sectors of society. Failing to explicitly connect Freedom of Information Act request demands to prioritizing proactive disclosure has undermined the administration’s goals for the impact of open data releases on transparency and accountability. Similarly, failures to proactively disclose the use of drones or of mass surveillance of telephony and online systems has had a negative impact upon public trust writ large and specifically in the efficacy or meaning of various open government initiatives.
When it comes to the use of the internet to disclose data and documents, or to engage the public in rulemaking, there are only two prior administrations that can be relevant, but the Obama administration compares favorably.
At the same time, agencies have stonewalled the press asking tough questions, limited access to government scientists and engaged in undisclosed surveillance, including of the press itself, and unprecedented use of the Espionage Act to prosecute whistleblowers.
All of this must be considered in context of President Obama’s choice to make open government part of his first day in office, reflecting an optimistic worldview that connected democracy and legitimacy to transparency and accountability in the wake of a decade of secrecy around an expanding national security state and prioritized disclosure of public information to the public.