President Obama Issues Sweeping New Transparency Policies

Stating, “My Administration is committed to creating an unprecedented level of openness in Government,” on his first day in office President Barack Obama announced a sweeping series of transparency reforms. In addition to revoking President Bush’s executive order on presidential records (see related story), the President issued a Presidential Memorandum on Transparency and Open Government, and a Presidential Memorandum on the Freedom of Information Act.

In his remarks made while issuing the new transparency policies President Obama said, “for a long time now there’s been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing some thing to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.”

In the memorandum to the heads of executive branches and agencies on FOIA, the President stated, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” President Obama went on to say, “The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public.” The President directed the Attorney General to issue new guidelines governing the FOIA reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register.

The President said, “To be sure, issues like personal privacy and national security must be treated with the care they demand. But the mere fact that you have the legal power to keep something secret does mean you should always use it.”

By contrast, the Bush administration’s policy towards FOIA was exemplified by the “Ashcroft Memorandum” which was issued on October 12, 2001, in response to the 9/11 attacks. The Ashcroft FOIA Memorandum established a “sound legal basis” standard in making determinations whether to release information. Under this standard, agencies are required to reach the judgment that their use of a FOIA exemption is on sound footing, both factually and legally, whenever they withhold requested information. However, the Ashcroft memo also made it clear the Attorney General’s office would err on the side of non-disclosure. It stated, “when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

In his Memorandum on Transparency and Open Government, President Obama said, “Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.” The memo went on to talk of promoting ways that government agencies could make information more readily available on-line and to give “Americans increased opportunities to participate in policymaking.”

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