EFF to Obama Administration: Time to Make Open Government a Reality

When President Obama, in one of his first official acts, issued directives committing his new administration to creating “an unprecedented level of openness in Government,” we joined with other transparency advocates in welcoming the announcement of a new direction. After eight long years of the most secretive administration in modern times, the President’s action was a breath of fresh air that seemed poised to bring the change he had promised to the critical realm of government information policy. While we continue to be optimistic, we believe that public interest organizations like EFF must remain aggressive in our pursuit of transparency to ensure that the reality matches the rhetoric.

To that end, we have taken several actions that are likely to provide early glimpses into the Obama Administration’s approach to open government issues.

First, we have asked the federal courts that are hearing several of our Freedom of Information Act (FOIA) lawsuits to postpone or “stay” further proceedings until Attorney General Holder issues new guidelines on FOIA implementation as directed by the President. It seems logical to us that a new regime devoted to “unprecedented” disclosure of information would welcome the opportunity to revisit withholding decisions made under previous, more restrictive policies, but so far we’ve gotten mixed messages from the Justice Department. In one case in which we seek information about the controversial Anti-Counterfeiting Trade Agreement (ACTA), Justice joined us in asking the court to stay proceedings until the new FOIA guidelines are issued and the agency can assess their impact on the disputed documents, and the court agreed. In another case involving the FBI’s massive Investigative Data Warehouse, DOJ opposed our motion for a stay, but the court issued an order directing the FBI to inform the court within 60 days “as to whether [its] position has changed” in light of the new policy announced by the President. In other lawsuits – involving the Automated Targeting System and lobbying efforts for “telecom immunity” – the government is opposing our requests for stays and the courts have not yet decided the issue.

Second, we have submitted requests directly to the White House for information concerning two high-profile technology issues that have emerged in the early days of the Obama Administration. In a letter sent to White House Counsel Gregory Craig on January 27, we requested information about the use of cookies on the WhiteHouse.gov website, noting the controversial privacy implications of the practice. While recognizing that the Counsel’s Office is not subject to mandatory disclosure requirements under FOIA, we asked Mr. Craig, in keeping with the President’s stated commitment to transparency, to nonetheless make relevant information public. After not receiving a response to our initial request, we sent Mr. Craig a reminder yesterday, reiterating the public interest in information about the privacy practices of federal websites.

And just today, we sent a request letter to the White House’s Office of Administration seeking disclosure of information about the President’s “Blackberry” (or whatever type of handheld device he uses) and policies governing the use of various electronic communications devices and systems by the President, Vice President, and White House staff. Electronic messaging raises a host of issues under federal open records laws, and we believe the public has a right to know about the policies and procedures that have been put in place to ensure compliance with those laws. There’s an interesting wrinkle to this request: the Bush Administration took the position (for the first time in history!) that the White House Office of Administration is not subject to FOIA. A federal judge agreed with that position and the issue is now on appeal. But as we’ve said to the White House in our request letter, if President Obama would (as he has said) like to “usher in a new era of open Government” and “creat[e] an unprecedented level of openness in Government,” it seems like a good place to start is right in the White House by reversing the Bush policy that banished FOIA from the premises. We’re hopeful that the President will agree.

Related Issues: FOIA Litigation for Accountable Government, Transparency

Related Cases: FOIA: Anti-Counterfeiting Trade Agreement (ACTA), FOIA: Telecom Lobbying Records

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