Sunshine Week

Sunshine Week is March 16-22, 2008

Open Government:

• On Monday, Dec. 31, 2007, President Bush signed into law the first major FOIA reform in decades; however, the 2009 budget, released in early 2008, stripped the legislation of funding for key components, including an ombudsman that would be housed under the National Archives. However, the president's budget proposal must still be approved by Congress. (See Appendix B)

• Over the past 9 years, the backlog of federal FOIA requests has tripled; when agencies did respond, they gave out less information

• Classification decisions were up 40% from 2005 to 2006, at 20 million

• Bush administration has invoked "state secrets" to withhold information more often than other presidents did during the height of the Cold War — from 1953-76 government declared information a state secret 6 times; since 2001 it has been cited more than 39 times

What the Candidates Are Saying About Open Government and FOI

(http://www.sunshineweek.org/sunshineweek/candidates)

Sen. Hillary Clinton (D-NY)

Sen. Clinton has included her proposals on open government issues in a 10-point plan for government reform.

"This is a plan to enhance accountability and transparency and make government more efficient and effective for taxpayers," Clinton said in an April 2007 speech announcing the plan. "To replace secrecy and mystery with transparency."

Among the plan's open government proposals are: ending no-bid government contracts and posting all federal contracts online, publishing the budgets of every government agency, bringing back the Office of Technology Assessment to safeguard scientific integrity, and putting more government services online. Clinton also calls for stronger protection for government whistleblowers.

Clinton's commitment to transparency has been questioned, however, over the time it took to release records covering her activities during Bill Clinton's presidency. The records, housed at her husband's presidential library in Arkansas, were first reviewed by the National Archives and Records Administration, and then sent to Clinton advisers for review. This process is required under an executive order signed by President Bush in 2001.

During the Feb. 26 debate in Cleveland, Clinton was asked again about release of the records, particularly since they'd been cleared by the Archives.

"I've urged that the process be as quick as possible," she replied. "It's a cumbersome process, set up by law. It doesn't just apply to us; it applies to everyone in our position. And I have urged that our end of it move as expeditiously as we can." Clinton also called on the White House to move quickly on its review of the information, which is also a step proscribed by the executive order.

In early March, the first batch of daily calendars was released, but Archives officials said it would be at least another year, maybe two, before phone logs would be similarly available, according to a report in The Hill.

Clinton is expected to release her tax returns "on or around April 15," according to ABC News.

The Bill Clinton administration was marked by a "long and wary relationship with the press," according to an analysis by The First Amendment Center. One of Clinton's first acts upon moving to the White House in 1993 reportedly was to end "the routine access to the West Wing that reporters covering the White House had enjoyed for decades."

The First Amendment Center analysis noted: "More than 14 years later, by many accounts, Sen. Clinton still has disdain for journalists and their prying predilections. But her years in the White House, in the Senate and now in the presidential campaign have taught her she needs at least to get along with the press and tolerate its excesses, at least most of the time, without exacting revenge."

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Sen. John McCain (R-AZ)

In the Lobbying and Ethics Reform section of his campaign Web site, McCain discusses the importance of transparency mainly in relation to earmarks and lobbyists' access to and influence over lawmakers.

"A democratic government operates best in the disinfecting light of the public eye. Ethics and transparency are not election year buzz words; they are the obligations of democracy and the duties of honorable public service," McCain is quoted.

Regarding earmarks, the site says, "As President, John McCain would shine the disinfecting light of public scrutiny on those who abuse the public purse, use the power of the presidency to restore fiscal responsibility, and exercise the veto pen to enforce it."

McCain has supported the release of Congressional Research Service reports to the public, and has spoken in favor of a federal shield law for reporters. "It may require more debate and all that, but I really feel that freedom of the press is a constitutional right, as we all know, and should be protected as much as humanly possible," he told the Arizona Republic.

An analysis by The First Amendment Center, however, finds that McCain is often willing to place achieving other goals such as campaign finance reform and banning flag burning above free speech rights. For example, of the McCain-Feingold campaign legislation, which was criticized for restricting political speech, McCain argued that limiting pre-election ads was a "limited and tolerable" speech control made necessary by the "compelling government interest at stake."

McCain reportedly also has supported the continued classification of certain records from the Vietnam War.

A January article in The Washington Post noted McCain's "infinite access" to the reporters covering his campaign — and his ability to engage in great conversations.

When asked if that would continue if he were the Republican nominee, McCain told the Post that he wouldn't stop because it would hurt his credibility to do so. In addition, McCain said he enjoys it.

Of course, that was all before a February New York Times article about a possibly inappropriate relationship between McCain and a female lobbyist. The next day McCain denied the accusations and one of his senior advisers strongly criticized the Times, likening its reporting to tabloid journalism.

McCain has refused to release his income tax returns, The Washington Post reported.

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Sen. Barack Obama (D-IL)

Obama has outlined an ambitious transparency plan that incorporates technology to "help connect government to its citizens and engage citizens in a democracy."

Among the proposals in Obama's plan to open government are: putting government data online in accessible formats; airing live webcasts of agency meetings; restoring scientific integrity; allowing people to track federal grants, contracts, earmarks and lobbyist contacts online; and allowing five days for public to review and comment on legislation online before it's signed.

In an October 2007 speech, Obama pledged to "turn the page on a growing empire of classified information, and restore the balance we've lost between the necessarily secret and the necessity of openness in a democratic society by creating a new National Declassification Center."

One of Obama's most visible Senate actions on the open government front was his co-sponsorship of the Federal Funding Accountability and Transparency Act, which went into effect Jan. 1, 2008 with the launch of USAspending.gov, a Web site that gives people access to information on government contracts, grants and other awards.

As an Illinois state senator, Obama co-sponsored the Verbatim Record Bill, requiring public agencies to video or audio record closed door meetings, The First Amendment Center reported, noting the law was the first of its kind enacted by any state.

Obama is the only remaining candidate to have signed the Reason Foundation's Oath of Presidential Transparency, and, according to The Washington Post he is the only leading candidate to have released his income tax returns.

The Chicago Sun-Times, however, pointed out several instances where Obama's transparency has been a little more opaque. Among them is the inability to produce records from his term as state senator, which Obama says is due simply to the lack of archivist resources.

Much has been made recently of the national news media's infatuation with Obama, which was skewered in a much-discussed Saturday Night Live skit that even prompted comments from Clinton about its veracity.

But as Bloomberg News columnist Maggie Carlson noted, members of the news media "are reacting to charges that they have gone easy on Obama." It is "the nature of the press to have severe morning-after regret for having gotten a lump in the throat over a candidate," she wrote.

Reporting in The Washington Post earlier this year discussed Obama's lack of engagement with — even insulation from — the press covering his campaign. "Obama often goes days without taking questions from national reporters, and when he does, the sessions can be slapdash affairs.... Some reporters say Obama seems disdainful toward journalists, having submitted to precisely one off-the-record chat over beer several months ago in Iowa."

Bush eliminates FOIA ombudsman

By Rebecca Carr | Monday, February 4, 2008, 06:22 PM

Noticeably absent from President Bush’s 2009 budget is funding for the job of overseeing all Freedom of Information Act disputes.

The ombudsman job at the National Archives and Records Administration was seen as the centerpiece of legislation passed by Congress last year and signed by Bush on Dec. 31 to overhaul the beleaguered law.

The president eliminated the job at the archives in his proposed spending plan and transferred the responsibility to the Justice Department.

After hearing rumors of this for the past two weeks, the open government community responded in full force, saying there is a conflict of interest in having Justice oversee complaints about FOIA responses.

“The Bush administration “repealed” a section of the new law,” said Patrice McDermott, executive director of OpenTheGovernment.org, an umbrella organization of conservative and liberal groups concerned about government secrecy. McDermott said the administration hid its actions deep in the Commerce section of the budget.

“The public should be shocked, as we are, that the president has attempted to use his budget to repeal a provision of a law he just signed,” McDermott said. “The OPEN Government Act creates an ombudsman office for the public in the National Archives and the president is not only ignoring this law, but attempting to re-write a statute-to legislate without Congress. This is an affront to all of us and it is time for Congress to restore the balance of powers.”

The Sunshine in Government Initiative, a coalition of ten media groups dedicated to open government issues, wrote to lawmakers today objecting to the action.

“Asking the Justice Department to perform the responsibilities creates an inherent conflict of interest,” the letter to lawmakers states. “We encourage the Congress to fully fund the Office of Government Information Services within the National Archives. This reflects the plain language of the statute and intent of Congress in passing the OPEN Government Act. The money should follow the law.”

“For the first time, Congress created an independent ombudsman in the federal government to help the public,” said Rick Blum, coordinator of SGI. “Why quit the experiment after only 35 days?”

The ombudsman would be an important advocate for the public to better understand how open government works, resolve disputes and avoid unnecessary lawsuits when seeking documents from our government, Blum said.

Daniel J. Metcalfe, who ran the Justice Department’s Office of Information and Privacy before retiring to run the Collaboration on Government Secrecy at American University’s Washington College of Law, found the president’s action ironic.

“Ironically, this is so transparent: OMB and Justice seek to avoid complying with this FOIA amendment by instead merely proposing its alteration, and through an appropriations process that of course won’t conclude until near the end of the year, if even by then,” Metcalfe said. “Meanwhile, existing law is flouted, a terrible example is set for FOIA implementation, and ‘the clock is run out’ by this administration. Congress should see through this and not tolerate it.”

Sen. Patrick J. Leahy, D-Vt., who authored the FOIA overhaul with Sen. John Cornyn, R-Texas, vowed to restore funding for the job at the National Archives.

Leahy suspected that the administration would make this move and said so on Jan. 24 on the Senate floor.

“Once again, the White House has shown they intend to act contrary to the intent of Congress,” Leahy said.

“The president has repealed part of the law he signed just over a month ago,” Leahy said. “I will continue to work through the appropriations process to make sure that the National Archives and Records Administration has the necessary resources and funds to comply with the OPEN Government Act.