Obama orders rollback of government secrecy
WASHINGTON — President Barack Obama's first public act in office yesterday was to formalize strict new limits on lobbyists operating in his White House and peel back presidential decision-making to allow more public scrutiny.
Another shift toward openness — Obama’s instruction to federal agencies to be more responsive to requests made under the Freedom of Information Act — was greeted with praise from government watchdogs.
Obama made several moves aimed at creating what he called “a new standard of openness” about the behind-the-scenes machinations of his White House — and those before it.
Chief among them was issuing an order requiring that the White House consult with the attorney general and White House counsel “any time the American people want to know something that I or a former president want to withhold.”
“Information will not be withheld just because I say so,” Obama said while attending a ceremony in the Eisenhower Executive Office Building to swear in about two dozen of his most senior aides. “It will be withheld because a separate authority believes my request is well grounded in the Constitution.”
Obama revoked the executive order issued by President George W. Bush in November 2001, less than two months after the Sept. 11 terrorist attacks, that allowed past presidents to exert executive privilege to keep some of their White House papers private.
A federal judge ruled parts of it invalid in 2007, while Obama's order revoked it entirely.
Bush’s order was viewed as ushering in a new era of presidential secrecy.
Former presidents may ask to have certain documents kept private, but they no longer may compel the National Archives to do so, Obama said.
Obama’s executive order also makes clear that neither former vice presidents nor relatives of former presidents who have died have authority to keep records private.
Scott Nelson, a Public Citizen lawyer who led the challenge to Bush's order, said researchers should find it easier to gain access to records under the new order.
“It's a great signal to send on the president's first day in office,” Nelson said.
The Presidential Records Act, passed in 1978, followed Watergate and President Richard Nixon's attempts to hold on to his papers and tape recordings, made presidential records the property of the government, not former presidents.
Under the law, former presidents and vice presidents can restrict access to some of their records, including confidential communications with advisers, for up to 12 years. After that, most documents must be made public.
Bush's order gave former presidents more authority beyond the 12-year period to claim executive privilege to withhold certain papers because they contain military, diplomatic or national security secrets, communications among the president and his advisers or legal advice.
It said the U.S. archivist had to abide by a former president's decision to keep records private and said former vice presidents or the heirs of a former president who had died also could forbid the release of documents.
Obama's order limits claims of executive privilege to records concerning national security, law enforcement or internal communications. It also specifies that only living former presidents may request that papers not be made public and gives them 30 days to say so once they get word of the archivist's intention to release records.
A request will be evaluated by the archivist, the White House counsel and the attorney general, under Obama's order. They can disregard the former president's wishes and allow for the release of the material, the order states.
Tom Blanton, director of the open-government advocate National Security Archive, said the order applies to former Vice President Dick Cheney's records.
Cheney has been embroiled in a lawsuit over which of his records have to be handed over to the National Archives. On Jan. 19, a federal judge ruled Cheney had broad discretion to determine which must be preserved. Those that are handed over to the Archives are no longer protected by executive privilege, according to Blanton.
One of Obama's new rules aimed at tamping down the influence-peddling game said that any lobbyists who get a job in his administration may not work on matters that they lobbied on and cannot even work in any agency they lobbied over the past years.
But William Corr, nominated for deputy secretary of the Health and Human Services Department, was listed in House and Senate records last year as having lobbied the agency, among other entities, on behalf of the Campaign for Tobacco-Free Kids.
And William J. Lynn III, Obama's choice for the No. 2 post at the Defense Department, was listed as a top lobbyist at the Pentagon for Raytheon Co., a major defense contractor.
“Even the toughest rules require reasonable exceptions,” said Robert Gibbs, White House press secretary. “Our waiver provisions are designed to allow uniquely qualified individuals like Bill Corr and Bill Lynn to serve the public interest in these critical times.”
The new lobbying rules also bar any Obama aides from trying to influence his administration when they leave, prohibiting them from lobbying former colleagues for two years.
As a presidential candidate, Obama vigorously campaigned against lobbyists' influence and painted himself as an outsider. Yet he allowed lobbyists to work on his transition team as long as they stopped their advocacy efforts, didn't work in the fields they lobbied for and pledged not to lobby on their transition areas for a year.
Obama said the steps “represent a clean break from business as usual.” The watchdog group Democracy 21 said Obama called it “the toughest and most far-reaching revolving door provisions ever adopted.”
However, President Bill Clinton issued an executive order on his first day in office in 1993 that prohibited senior executive-branch employees from lobbying their former colleagues within five years of leaving their government jobs. The “revolving door” ban remained in effect until Clinton left the White House in 2001, when he lifted it.
Bush issued more general guidance early in his tenure, reminding top aides of the laws dealing with bribery and conflicts of interest. That law permanently banned top executive branch officials from lobbying on matters in which they were personally and substantially involved while in government. For matters over which they had responsibility but not personal involvement, the ban is for two years.
Freedom of information
Obama also reinstituted a presumption of disclosure for Freedom of Information Act requests about the workings of government.
Obama said he was directing agencies that vet requests for information to err on the side of making information public — not to look for reasons to legally withhold it. “For a long time now, there's been too much secrecy in this city,” he said.
Government watchdogs are cheering the move to change how open-records laws are interpreted as a sign of greater disclosure of agency information than during the Bush administration.
Obama's instruction to federal agencies to be more responsive to FOIA requests is not the first time a president has pushed for wider release of information. The Carter and Clinton administrations had similar policies that called for agencies to err on the side of making materials public, rather than looking for reasons to legally withhold them.
But advocates say they believe Obama's administration will go further, using Web sites and other electronic media to give the public unprecedented access.
“The fact that Mr. Obama took these actions on his very first day in office signals a new era in government accountability,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. “He is turning the page and moving away from the secrecy of the last administration.”
In a memo to agency heads, Obama explained that public-interest groups often make use of the law to explore how and why government decisions were made; they are often stymied as agencies claim exemptions.
“In the face of doubt, openness prevails,” Obama wrote. “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. Nondisclosure should never be based on an effort to protect the personal interests of government officials.”
Obama also said agencies should actively seek ways to publicly release information. “They should not wait for specific requests from the public,” the memo states. “All agencies should use modern technology to inform citizens about what is known and done by their government. Disclosure should be timely.”
Experts say the full dimensions of the change won't be fully known until the attorney general issues the formal guidance to agencies in the next 120 days. But material ranging from government contracts to how banks are using taxpayer money from the bailout — which are subject to FOIA but often fall into legal gray areas — could now be subject to greater disclosure.
“This is dramatic,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “The most important thing a president can do is to reiterate that it is important for citizens to know what its government is up to. This is an incredible message he's sending out to federal agencies.”
It's a major change from a Bush administration that actively sought to prevent disclosure based on the grounds of national security. It's also the latest in a three-decade-long ping pong game with FOIA policy.
In the late 1970s, Carter's attorney general, Griffin Bell, issued guidance to err on the side of releasing information. Under Reagan, William French Smith came in and reversed that; he told them, “when in doubt withhold.” Then under Clinton, Janet Reno reversed it again; she told agencies their presumption should be for release.
But Bush Attorney General John Ashcroft went back the other way in October 2001, telling agencies he would defend any legal justification for withholding documents.
Congress later sought to undercut Ashcroft's order, passing legislation in December 2007 that toughened FOIA by establishing a hot-line service to help people requesting information deal with problems they may encounter and an ombudsman to provide an alternative to litigation in disclosure disputes.
Obama's directive yesterday effectively reverses Ashcroft's memo, restoring open-records laws largely to how they were interpreted during the Clinton administration.
Tom Curley, president and chief executive of the Associated Press, praised Obama's move after many years in which government “has worked at restricting the flow of information to Americans, bypassing the First Amendment.”
“This step toward providing more access and making our government agencies more accountable can help build the people's confidence in government,” he said.
White House photo flap
Meanwhile yesterday, Curley’s news agency and two others refused to distribute White House-provided photos of Obama in the Oval Office, arguing that access should have been provided to news photographers.
The AP, Reuters and Agence France-Presse said the White House was breaking with long-standing tradition in not allowing news photographers to capture the president at work in the Oval Office on his first day.
“We are not distributing what are, in effect, visual press releases,” said Michael Oreskes, managing editor for U.S. news at the AP.
The news agencies have used White House-provided images in the past for areas in the White House where media access is generally not permitted, such as the Situation Room or the private residence. But they contend that the Oval Office is the public office of the president and photographers should have access rather than rely on a government handout.
“Using these photos would be a major break with established precedent and would compromise the long-held tradition of independent photo coverage of the president and the White House by the major news agencies,” said Courtney Dolan, spokeswoman for Thomson Reuters.
There was no reply to e-mail and phone messages left with Obama representatives in time for this story.
The White House later released a photograph of the president retaking the oath of office with Chief Justice John Roberts, which the AP also rejected.
Vincent Amaluy, director of photography for North and South America for AFP, said he suspected first-day confusion was more at play than an attempt to clamp down on access.
“We are hopeful of negotiating an amicable solution,” Oreskes said.
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Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.
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John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Center at the Newseum Institute.. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is an expert in First Amendment issues and a regular contributor to the First Amendment Center's website. Hudson teaches law and was a scholar at the First Amendment Center.