March 19, 2012 | By Trevor Timm

Sunshine Week Wrap-up: The Good, the Bad, and the Ugly

Last Friday marked the end of Sunshine week, a national initiative to promote dialogue about the importance of open government and freedom of information. It’s the third year for the Obama administration, which has been taken to task for reversing early promises on transparency. Have they improved? Here’s our review:

The Good

Ahead of Sunshine Week, the Obama administration debuted a welcome addition to government transparency: the newly-redesigned ethics.gov, which, as Politico reported, “puts various public records databases in a centralized location, including White House Visitor Records, lobbyist disclosure records, and campaign finance reports. Most of these databases were previously available online, but users can now search across all available datasets simultaneously.”

Attorney General Eric Holder also gave a speech touting that the Justice Department has  “made meaningful, measurable progress in improving the way our Departmentand its partners and counterpartsrespond to disclosure requests.” He claimed the DOJ released documents in either full or in part 94.5% of the time and reduced its backlog by 26%. He also said the Justice Department will begin posting monthly lists of Freedom of Information Act requests and will publicly identify the subject matter of the requests.

The Bad

Unfortunately, the same numbers that Eric Holder touted in his press conference were soon called into doubt by FOIA experts. The National Security Archive stated that only about 60% of FOIA requests are fulfilled for all intents and purposes (compared to 94.5%). And former Justice Department FOIA official Daniel Metcalfe told The Atlantic Wire Holder’s numbers were “grossly wrong.”

Commendably, at a Senate Judiciary Committee hearing on Sunshine Week, Senators from both parties quizzed a Justice Department representative on the numbers, along with the agency’s notoriously bad relationship with FOIA. Senator Patrick Leahy also grilled other agency representatives, prodding the Office of Management and Budget to submit its required reports on FOIA recommendations. Leahy even went as far as accusing the OMB of not following the law. “The law’s pretty clear about us getting the reports. We haven’t gotten the report. Who’s at fault?....My question is: who's not following the law?” Leahy demanded.

Senator Chuck Grassley later stated: “Agencies under the control of President Obama’s political appointees have been more aggressive than ever in withholding information from the public and from Congress,” Grassley said. “There’s a complete disconnect between the President’s grand pronouncements about transparency and the actions of his political appointees.”

Separately, as the Sunshine Foundation noted, the House Oversight and Government Reform Committee also made their thoughts known about the administration’s approaching to government secrecy, concluding “that many federal agencies have failed to track basic information in response to FOIA Requests. The Department's of Homeland Security, Defense, and Justice were among the least compliant."

The Ugly

Unfortunately, in the midst of its Sunshine Week-push to defend its transparency record, the administration also went to Congress to urge them to pass the new “cybersecurity” bill. EFF has detailed its extensive privacy problems, but according to the Washington Post, it would also “keep secret a whole new category of information even under the Freedom of Information Act.” In the process the administration criticized a recent Supreme Court ruling that narrowly interpreted one of FOIA’s many exemptions the government frequently relies on to keep documents secret—a decision hailed by EFF and other open government groups.

Its attitude toward secrecy was also on display in the courts, where the Justice Department released its first batch of documents in EFF’s suit over its secret interpretation of the Patriot Act. While thankfully, the Justice Department finally admitted the interpretation actually exists, the documents it gave EFF told us virtually nothing about the way section 215 is secretly being used.  Separately, Senators Ron Wyden and Mark Udall implored the government to release the secret court rulings on which the interpretation is based, saying, “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.” The Justice Department has, of course, refused.

Meanwhile, the ACLU filed a brief in its lawsuit against the CIA demanding information on the CIA’s “secret” drone program, which has been used to carry out targeted killings around the world. Despite the Secretary of Defense and former CIA chief Leon Panetta and President Obama both acknowledging the program exists—the program is regularly the subject of front page stories in the nation’s newspapers, after all—as the ACLU noted “CIA takes the position in this lawsuit that it can neither confirm nor deny whether it has a drone strike program at all.”

And finally, remember those White House visitor records the Obama administration has mentioned as part of its “good” transparency initiatives?  While the administration is willing to make that information available on a voluntary basis, it insists that it is not required to do so.  In fact, the Justice Department filed an appellate brief earlier this month arguing that White House visitor logs are not covered by the FOIA and that the White House is not legally obligated to make them available to the public.



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