Publication Date

February 1, 2017

Note: Portions of this column appeared in different form on the National Coalition for History’s website.

With the words “My Administration is committed to creating an unprecedented level of openness in Government,” President Barack Obama announced a sweeping series of transparency reforms on his first day in office in 2009. In addition to revoking President George W. Bush’s executive order on presidential records, the president issued the Presidential Memorandum on Transparency and Open Government and the Presidential Memorandum on the Freedom of Information Act (FOIA). “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 president said.

With Obama having recently left office, it’s time to consider how well he kept that promise. In a sense, by setting the bar so high, he created a level of expectation that was probably impossible to meet. Nonetheless, major progress was made in a number of key areas affecting the work of historians, archivists, and other stakeholders in the National Coalition for History (NCH).

Accessing Presidential and Federal Records

In December 2014, Obama signed into law the Presidential and Federal Records Act Amendments of 2014 (PL 113-187). This was a major victory for the NCH and the community of historians, who have been advocating for the passage of Presidential Records Act (PRA) reform legislation since 2001, when Bush issued Executive Order (EO) 13233, which restricted public access to presidential records.

The fact that there was nothing in the PRA that set forth a constitutional privilege review procedure had proved vexing for historians, archivists, political scientists, journalists, and others. The process for restricting access had created delays and uncertainty as to when records would be released. The PRA allows the public to make FOIA requests beginning five years after a president leaves office; however, it allows the former president to claim six FOIA restrictions for up to 12 years.

Significantly, the PRA did not provide a procedure allowing former presidents to request continued restricted access. This flaw in the statute left it up to each president to interpret the law and to impose restrictions as he saw fit through the issuance of executive orders.

This situation led to abuses. For example, Bush attempted to broaden the authority of those able to make a privilege claim and potentially restrict public access indefinitely beyond the 12-year period in the law. In the past, requests by former presidents for additional time in which to review records had been routinely granted by the incumbent. The new law ended that practice. For the first time, former presidents and the incumbent president, after receiving notice from the National Archives of its intent to release a record, were subjected to specific time limitations in reviewing records for constitutionally based privilege against disclosure. The current president and former presidents now have an initial 60 days to review the records and are allowed one 30-day extension.

The statute also made important changes to the way federal records are treated. According to the National Archives, the law “strengthened the Federal Records Act by expanding the definition of federal records to clearly include electronic records”—the first time since 1950 that the definition of a “federal record” changed. The statute also “confirmed that federal electronic records will be transferred to the National Archives in electronic form.”

In addition, the law clarified the responsibilities of federal government officials when using nongovernment e-mail systems. If government employees use a nonofficial e-mail account to create a record, they must either make a copy of the record or forward it to their official e-mail account within 20 days of creating the record. This provision, had it been in effect at the time that Hillary Clinton was secretary of state, would have explicitly mandated her to copy or forward e-mails to the State Department from the private server she used to conduct agency business.

Declassifying More Documents

On December 29, 2009, Obama issued the Executive Order on Classified National Security Information (EO 13526), creating a National Declassification Center (NDC) at the National Archives. The president charged the NDC with streamlining declassification processes and eliminating a huge backlog of reviewed but unavailable archival records by December 31, 2013. NDC met the deadline and completed quality assurance reviews on over 361 million pages of historically valuable classified records, making these federal government records publicly available for the first time.

In November 2010, the president issued EO 13556, which established the Controlled Unclassified Information (CUI) Program and designated the National Archives to oversee the development of new regulations to address the issue of overclassification of federal records.

CUI is information that, while sensitive, does not meet the higher level of security restrictions needed to qualify as classified. Developing a consistent definition of CUI and handling directions for this material is a ­challenge that has dogged the federal government for decades. The Information Security Oversight Office reported that agencies used more than 100 different markings to designate CUI.

In September 2016, the National Archives issued a final rule establishing consistent practices and procedures for safeguarding, disseminating, controlling, and marking CUI across Executive Branch departments and agencies. To try to provide a uniform, government-wide process for managing CUI, the rule created four broad categories. Lessening the overclassification of federal records at creation will hopefully decrease the volume of records that will eventually need to be declassified. The rule went into effect on November 13, 2016.

Expanding FOIA

In a 2009 memo to all heads of executive departments and agencies, Obama laid out his FOIA policy: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

With support from NCH, Obama signed the FOIA Improvement Act of 2016 (PL 114-185) on June 30. The law includes the first major improvements to FOIA in over a decade, especially in strengthening the “foreseeable harm” standard: under the law, federal agencies must adhere to a standard of openness and release information unless an agency “reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”

The new law also limits Exemption 5, the broadest of the nine exemptions to FOIA, which includes documents touching on “the deliberative process.” This refers to documents that agencies claim pertain directly to the policy-making process, including advice, recommendations, and opinions; the purpose of Exemption 5 is to allow agency personnel to be candid in the documents they create. Even though the deliberative process privilege can still apply to policies that have already been promulgated, the new law places limits on it: “the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested,” according to the Department of Justice. The time limit opens up a new potential source of research materials to scholars.

Assessing Obama’s Performance

Members of the open government community have mixed reactions about the Obama years with regard to transparency. Although they see his ambitions as laudable, they are divided in their assessments of his achievements.

“Obama’s first-day declarations did set the expectations bar quite high, but the needed top-down follow-through was too often not provided,” said Patrice McDermott, executive director of The administration “believed that FOIA could be turned around quickly but failed to ensure that it was a high priority for agency leadership.” Mark Zaid, one of Washington’s most prominent attorneys in FOIA-request cases, echoed McDermott’s analysis. The administration “generally continued in an upward trend from previous administrations on many levels,” he said. “But in light of the promises it made (and failed to keep) and the hope we had (which often did not materialize), the final result after eight years is more disappointment than applause.”

But Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, was more positive. “On his first full day in office, President Obama famously pledged to conduct the most transparent administration in history,” he said. “Though it was imperfectly executed and suffered some reversals, I think that pledge was fulfilled to an impressive extent.” “More government information was made more easily available to more people than ever before,” he added. “If this was not the most transparent administration in history, then which administration was?” McDermott also acknowledged achievements. “In other areas, such as records management and intelligence, after some ‘encouragement’ from civil society and outside events, there was greater focus and the beginnings of significant change,” she said.

With a new presidential administration will come new policies regarding transparency and records, not to mention many other history-related issues. NCH pledges to keep AHA members up to date on this topic and others of concern to our community.

is executive director of the National Coalition for History.

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