President Barack Obama today reversed the Ashcroft memo by instructing federal agencies to err on the side of openness when interpreting the Freedom of Information Act.
This is one of the most important movements in years regarding freedom of information. Soon after 9/11, then Attorney General John Ashcroft issued a memo instructing agencies to err on the side of secrecy, and that he would go to bat for them if they wanted to keep something closed to the public. That memo reversed the general previous policy that records are open unless the government could prove they should be secret by law.
The new policy, ordered by Obama, looks like it will return us to pre-9/11 days, where the assumption is the people have a right to know what their government is up to (within reason).
Here is what the White House press release states, in part:
In the Presidential Memorandum on Transparency and Open Government, and the Presidential Memorandum on the Freedom of Information Act, the President instructs all members of his administration to operate under principles of openness, transparency and of engaging citizens with their government. To implement these principles and make them concrete, the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive within 120 days directing specific actions to implement the principles in the Memorandum. And the Memorandum on FOIA instructs the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context.
Finally, the Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents. This order ends the practice of having others besides the President assert executive privilege for records after an administration ends. Now, only the President will have that power, limiting its potential for abuse. And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.
Here is what Obama said in an Associated Press article:
“For a long time now, there’s been too much secrecy in this city,” Obama said.
He said the orders he was issuing Wednesday will not “make government as honest and transparent as it needs to be” nor go as far as he would like.
“But these historic measures do mark the beginning of a new era of openness in our country,” Obama said. “And I will, I hope, do something to make government trustworthy in the eyes of the American people, in the days and weeks, months and years to come.”
Here is what Sen. Patrick Leahy, D-Vt., said: “From the start of his transition to the White House, President Obama has made a clear commitment to open government. By issuing this order to strengthen the Freedom of Information Act, and ensure the American people have a more transparent government, he is turning the page and moving away from the secrecy of the last administration. I commend President Obama for recognizing that our government is accountable to the people it represents.”
We don’t know the exact details, as they’ll draft them in the next 120 days, but this is a great sign of good things to come. A new day has arrived in America!
Here is a transcript from this afternoon’s press conference, provided by the White House:
For Immediate Release
January 21, 2009
REMARKS BY THE PRESIDENT
IN WELCOMING SENIOR STAFF AND CABINET SECRETARIES
TO THE WHITE HOUSE
Eisenhower Executive Office Building
1:18 P.M. EST
THE PRESIDENT: Hello, everybody. Please be seated. Still getting used to that whole thing. (Laughter.) Please be seated. Thank you so much. I wanted to get everyone together on the first day to welcome you to the White House.
From our vantage point yesterday you couldn’t help but be inspired by the sight of Americans as far as the eye could see. They were there because they believe this is a moment of great change in America, a time for reinvigorating our democracy and remaking our country. They’ve entrusted all of us with a great responsibility. And so today I’d like to talk with you about our responsibility to keep that trust.
In a few minutes I’m going to be issuing some of the first executive orders and directives of my presidency. And these steps are aimed at establishing firm rules of the road for my administration and all who serve in it, and to help restore that faith in government, without which we cannot deliver the changes we were sent here to make — from rebuilding our economy and ensuring that anyone who is willing to work and find a well-paying job, to protecting and defending the United States, and promoting peace and security.
However long we are keepers of the public trust we should never forget that we are here as public servants and public service is a privilege. It’s not about advantaging yourself. It’s not about advancing your friends or your corporate clients. It’s not about advancing an ideological agenda or the special interests of any organization. Public service is, simply and absolutely, about advancing the interests of Americans.
The men and women in this room understand this, and that’s why you’re here. All of you are committed to building a more responsible, more accountable government. And part of what that means is making sure that we’re spending precious tax dollars wisely and cutting costs wherever possible.
During this period of economic emergency, families are tightening their belts, and so should Washington. And that’s why I’m instituting a pay freeze on the salaries of my senior White House staff. Some of the people in this room will be affected by the pay freeze, and I want you to know that I appreciate your willingness to agree to it, recognizing that it’s what’s required of you at this moment. It’s a mark of your commitment to public service.
But the American people deserve more than simply an assurance that those who are coming to Washington will serve their interests. They also deserve to know that there are rules on the books to keep it that way. They deserve a government that is truly of, by, and for the people. As I often said during the campaign, we need to make the White House the people’s house. And we need to close the revolving door that lets lobbyists come into government freely, and lets them use their time in public service as a way to promote their own interests over the interests of the American people when they leave.
So today we are taking a major step towards fulfilling this campaign promise. The executive order on ethics I will sign shortly represents a clean break from business as usual. As of today, lobbyists will be subject to stricter limits than under any other administration in history. If you are a lobbyist entering my administration, you will not be able to work on matters you lobbied on, or in the agencies you lobbied during the previous two years. When you leave government, you will not be able to lobby my administration for as long as I am President. And there will be a ban on gifts by lobbyists to anyone serving in the administration, as well.
Now, the new rules on lobbying alone, no matter how tough, are not enough to fix a broken system in Washington. That’s why I’m also setting new rules that govern not just lobbyists, but all those who have been selected to serve in my administration.
If you are enlisting in government service, you will have to commit in writing to rules limiting your role for two years in matters involving people you used to work with, and barring you from any attempt to influence your former government colleagues for two years after you leave. And you will receive an ethics briefing on what is required of you to make sure that our government is serving the people’s interests, and nobody else’s — a briefing, I’m proud to say, I was the first member of this administration to receive last week.
But the way to make a government responsible is not simply to enlist the services of responsible men and women, or to sign laws that ensure that they never stray. The way to make government responsible is to hold it accountable. And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they’re being made, and whether their interests are being well served.
The directives I am giving my administration today on how to interpret the Freedom of Information Act will do just that. 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.
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 not mean you should always use it. The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable. And I expect members of my administration not simply to live up to the letter but also the spirit of this law.
I will also hold myself as President to a new standard of openness.
Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.
Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency.
Our commitment to openness means more than simply informing the American people about how decisions are made. It means recognizing that government does not have all the answers, and that public officials need to draw on what citizens know. And that’s why, as of today, I’m directing members of my administration to find new ways of tapping the knowledge and experience of ordinary Americans — scientists and civic leaders, educators and entrepreneurs — because the way to solve the problem of our time is — the way to solve the problems of our time, as one nation, is by involving the American people in shaping the policies that affect their lives.
The executive orders and directives I’m issuing today will not by themselves make government as honest and transparent as it needs to be.
And they do not go as far as we need to go towards restoring accountability and fiscal restraint in Washington. But these historic measures do mark the beginning of a new era of openness in our country.
And I will, I hope, do something to make government trustworthy in the eyes of the American people in the days and weeks, months and years to come. That’s a pretty good place to start.
Thank you very much. (Applause.)
(The executive order and directives are signed.) (Applause.)