There's a New Sheriff in Town
Lee White, March 2009
On January 21, 2009, stating, “My Administration is committed to creating an unprecedented level of openness in government,” President Barack Obama announced a sweeping series of transparency reforms. Symbolically, in one of his first official acts, the president revoked the Bush administration’s Executive Order 13233 that severely limited access by the public to presidential records.
In addition to revoking President Bush’s executive order on presidential records, the new president issued a Presidential Memorandum on Transparency and Open Government, and a Presidential Memorandum on the Freedom of Information Act (FOIA), directing all members of his administration to operate under principles of openness and transparency.
In 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 something 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.”
The issuance of the Obama presidential records executive order ends a nearly eight-year effort by historians, archivists, political scientists, and other stakeholders in federal courts and on Capitol Hill to have the Bush E.O. revoked on legal grounds or by statute.
The language in the Obama executive order is similar to Executive Order 12667 issued by President Reagan in 1989, which was in effect during the presidencies of George H.W. Bush and Bill Clinton. The Reagan executive order was revoked when President Bush issued E.O. 13233 in November 2001.
The Obama executive order restores the presumption that the incumbent president, not former presidents, their heirs, or designees, should be the one asserting claims of executive privilege. The executive order states that only “living” former presidents can make claims of executive privilege. This removed one of the most egregious sections of the Bush E.O., which allowed heirs or designees to make claims of executive privilege for an indefinite period after the death of a former president.
In addition, the provisions in the Bush E.O. allowing former vice presidents to assert executive privilege are gone. In fact, the Obama E.O. makes it clear that vice presidential records are to be included under the definition of “presidential records.”
President Obama’s executive order also restores the function of the Archivist of the United States as an independent arbiter of initial claims of executive privilege. The executive order assumes the archivist may release records 30 days after notifying the incumbent and former presidents unless a claim of executive privilege is made.
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.
By contrast, the Bush administration’s policy towards FOIA was exemplified by the “Ashcroft Memorandum” that 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 online and to give “Americans increased opportunities to participate in policymaking.”
—Lee White is the executive director of the National Coalition for History. He can be reached at firstname.lastname@example.org. His regular, informative, “Washington Update,” can be read at http://historycoalition.org where readers can also sign up to receive the update or to get an RSS feed about the latest post.