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Freedom of information: partly sunny

Will the Washington Legislature have to bail out any state pension funds? Credit: Wikipedia contributor Cacophany

Day One executive orders are important, and President Barack Obama set his administration on record last week with two important orders reversing the secrecy policies of the Bush Administration and ordering agencies to be more transparent. Journalists and historians are optimistic.

The President’s open-records order tells federal agencies to come down on the side of disclosure, rather than look for reasons to deny information, as was often the policy of the previous administration. “You couldn’t ask for anything better,” Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington, an advocacy group that tangled frequently with the Bush administration over records, told the New York Times. “For the president to say this on Day 1 says: ‘We mean it. Turn your records over.'”

In effect, Obama ordered his agencies to revert to policies of the Clinton administration, when Attorney General Janet Reno told agencies to disclose information unless “foreseeable harm” could result. President George W. Bush’s attorney general, John Ashcroft, reversed the policy, encouraging agencies to search for exemptions to the Freedom of Information Act (FOIA), and pledging to defend them when they rejected requests. The result was a substantial delay in releasing data, and less data released.

Obama’s executive order, because it emanates from the White House rather than the Department of Justice, carries the full weight of the President and sends a strong signal for transparency. Media folk are not the only winners in the open-government game, as Joel Connelly pointed out in Thursday’s P-I; stonewalling by Bush appointees was a major hurdle for Sen. Maria Cantwell as she tried to pry open Enron’s files in the first Bush term.

If the FOIA order is critical to journalists and others using the disclosure act, Obama’s second order delights historians, who had sharply protested a Bush order that allowed former presidents or their heirs to claim executive privilege and keep records secret almost indefinitely.

The Bush executive order for presidential papers was widely interpreted as an attempt to shield records of his father, President George H. W. Bush, as well as those of Vice President Dick Cheney, who served as defense secretary under the elder Bush. The order gave a sitting president, or the president whose records are being requested, the power to review a documents request, with no time limit. If either president said no, you had to sue to get the records.

Slate designated the presidential-records order as the first of ten that Obama should reverse, noting, “It puts a president’s interest in secrecy — to prevent embarrassment, inconvenient revelations, whatever — over the public’s interest in understanding past events of national import.”

Open-records advocates such as the Reporters Committee for Freedom of the Press and the American Historical Association had hoped for an early action on FOI, and were ecstatic with the White House announcement. Clint Hendler, writing for the Columbia Journalism Review online, noted the importance of the timing: “In restoring the Reno standard — a move that CJR, among many other voices, called for — on his first full day in office and via such a high profile legal instrument, Obama has struck a quick and prominent victory for government openness. Let’s hope it’s one of many to come.”

Others seized upon Obama’s action to urge more openness at the state and local level. Blogger Daniel X. O’Neil of commented to PBS Idea Lab: “The standards, formats, and policies for the publication of data vary widely from city to city. As for actual FOIA requests, we’ve heard all of the same stiff reasons for denial that have become cliche for open government advocates. The presumption is rejection, not disclosure.”

The exemptions problem caused the Washington Legislature in 2007 to create a “Sunshine Committee,” representing media, legal, local government and other interests. The group was charged with examining the estimated 300 large and small exemptions to the 1972 initiative creating the Public Disclosure Act.

The committee has labored diligently but with little result, and open-records advocates are frustrated. Exemptions are found in dozens of different laws, sometimes in unexpected locations, and are often extraordinarily complex — the work of lawyers who convinced legislators of the importance of their concern. Public testimony is required, and a committee appointed to represent sharply contrasting constituencies finds it hard to reach a conclusion.

This flailing-about prompted Sen. Darlene Fairley, who chairs the Senate Government Operations Committee, to threaten legislation to close the committee, calling it a waste of time and money. Fairley, D-Lake Forest Park, is also sponsoring (at the request of local governments) three bills to make it costlier to obtain public records and to deny them to someone who didn’t pay for past requests. The changes would impact individuals or small newspapers lacking the resources of larger organizations, and leave the open-government movement actually weaker than it was in 2007. None of the legislation has passed at this time.

Media representatives and the Washington Coalition for Open Government (WashCOG) are represented on the Sunshine Committee, but outnumbered by others, including organizations that want to keep records from the public. The committee may simply be hogtied by competing interests, and in any event it is only advisory to the Legislature that created all the loopholes.

A major impediment is the scattering of exemptions throughout the statutes. If they were collected within the Public Disclosure Act they could be examined in a more orderly manner, and an omnibus bill presented to the Legislature to clean up the worst abuses. As it now stands, the committee has only one staff person to track down and examine hundreds of loopholes randomly placed throughout the statutes.

Toby Nixon, WashCOG’s president and a former state representative, believes Fairley and others misunderstand the goal of the Sunshine Committee. “It was not the purpose of the Sunshine Committee to eliminate exemptions, and its success should not be judged by the number of exemptions it recommends be eliminated. The purpose of the Sunshine Committee is to review exemptions,” Nixon states. The work has been slow, he admits, in part because the committee elected to deal with several controversial exemptions early-on, including attorney-client exemptions. Nixon believes the committee now has its procedures in order and will be much speedier in the future, if it survives.

WashCOG is also advocating several changes in local governmental proceedings. One would reverse a Washington Supreme Court ruling (Hangartner v. City of Seattle) that allows local governments to keep secret virtually all communications between boards and their attorneys; WashCOG wants the exemption limited to actual litigation matters. The advocacy group seeks several other changes, among them the recording of executive sessions, which, along with the attorney-client provision, has allowed significant actions of elected boards to be kept from the public.

President Obama is able by a simple executive order to change the way the nation’s public disclosure policies are handled — although his Justice Department will need to ride herd on recalcitrant bureaucrats. But our state public disclosure system has been shackled by a quarter-century of meddling and special-interest pleading, and will be much more difficult to reform. Something other than the Sunshine Committee may be needed to do the job, but the job still needs to be done.

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