Capitol Commentary

Lee White

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President Obama Issues in New Era of Transparency

On January 21, 2009, stating, “My Administration is committed to creating an unprecedented level of openness in Government,” President Barack Obama announced a sweeping series of transparency reforms. Symbolically, in one of his first official acts, President Barack Obama revoked the Bush administration’s Executive Order 13233 that severely limited access by the public to presidential records.

In addition to revoking President Bush’s executive order on presidential records, the president issued a Presidential Memorandum on Transparency and Open Government, and a Presidential Memorandum on the Freedom of Information Act (FOIA), directing all members of his administration to operate under principles of openness and transparency.

In his remarks made while issuing the new transparency policies, President Obama said, “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.”

The issuance of the Obama presidential records executive order ends a nearly eight-year effort by historians, archivists, political scientists, and other stakeholders in federal courts and on Capitol Hill to have the Bush executive order revoked on legal grounds or by statute.

The language in the Obama executive order is similar to Executive Order 12667 issued by President Reagan in 1989 which remained in effect during the presidencies of George H.W. Bush and Bill Clinton. The Reagan executive order was revoked when President Bush issued EO 13233 in November 2001.

The Obama executive order restores the presumption that the incumbent president, not former presidents, their heirs or designees, should be the one asserting claims of executive privilege. The executive order states that only living former presidents can make claims of executive privilege. This removed one of the most egregious sections of the Bush executive order that allowed heirs or designees to make claims of executive privilege for an indefinite period after the death of a former president.

In addition, the provisions in the Bush executive order allowing former vice presidents to assert executive privilege are gone. In fact, the Obama executive order makes it clear that vice presidential records are to be included under the definition of "presidential records."

President Obama's executive order also restores the function of the Archivist of the United States as an independent arbiter of initial claims of executive privilege. The executive order assumes the archivist may release records thirty days after notifying the incumbent and former presidents unless a claim of executive privilege is made.

In the memorandum to the heads of the executive branch and agencies on FOIA, the president stated, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” President Obama went on to say, “The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public.” The president directed the attorney general to issue new guidelines governing the FOIA reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register.

By contrast, the Bush administration’s policy towards FOIA was exemplified by the “Ashcroft Memorandum” which was issued on October 12, 2001, in response to the 9/11 attacks. The Ashcroft FOIA memorandum established a “sound legal basis” standard in making determinations whether to release information. Under this standard, agencies are required to reach the judgment that their use of a FOIA exemption is on sound footing, both factually and legally, whenever they withhold requested information. However, the Ashcroft memo also made it clear that the attorney general’s office would err on the side of nondisclosure. It stated, “when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

In his Memorandum on Transparency and Open Government, President Obama said, “Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.” The memo went on to talk of promoting ways that government agencies could make information more readily available online and to give “Americans increased opportunities to participate in policymaking.”

Archivist of the United State Allen Weinstein Resigns

On December 7, historian Allen Weinstein, Archivist of the United States, submitted his resignation to the president, effective December 19, 2008. Professor Weinstein, who has Parkinson's disease, cited health reasons for his decision. Deputy Archivist of the United States, Adrienne Thomas, will serve as acting archivist until a new archivist is appointed.

On December 19, 2008, the major archival groups, the National Coalition for History (NCH), and several individual NCH member organizations sent a letter to President-elect Obama’s transition team setting forth the qualifications that should be considered in selecting a new Archivist of the United States. In mid-January representatives of the NCH and archival groups met personally with senior members of the Obama transition team to discuss priorities for the national archives in the new administration.

There is currently no public timetable for filling the position.

Federal Court Upholds Cheney
in Records Case

On January 19, 2009, Federal District Court Judge Colleen Kollar Kotelly accepted Vice President Cheney’s claim that he was complying with the Presidential Records Act (PRA), thus denying efforts by historians and archivists to ensure that the full body of Cheney’s records would be preserved. The PRA requires presidential and vice presidential records to be turned over to the National Archives at the end of an administration.

Last year, Citizen’s for Responsibility and Ethics in Washington (CREW) filed suit in federal court to determine whether Vice President Cheney’s executive branch records were being properly preserved. Joining CREW as plaintiffs were the Organization of American Historians, the American Historical Association, the Society of American Archivists, the Society for Historians of American Foreign Relations, and historians Stanley I. Kutler and Martin J. Sherwin.

Over the past few years, Vice President Cheney and the Office of the Vice President have stated at different times and in different venues that they were not part of the executive branch, and it is such claims that precipitated the lawsuit. For example, on June 26, 2008, the vice president’s chief of staff, David Addington, testified before the House Judiciary Committee that the vice president belongs to neither branch but is attached by the Constitution to Congress. At other times claims were made by Cheney’s office that the vice president was part of the legislative branch given his constitutionally assigned role as president of the Senate.

The petitioners argued that without judicial intervention on January 20, 2009, a vast majority of Vice President Cheney’s records would not be transferred to NARA, as required by Presidential Records Act (PRA), for eventual release to the public, but instead would remain under the vice president’s custody and control.

The court granted discovery in the case to allow clarification regarding whether the defendants were, in fact, complying with the Presidential Records Act. CREW attorneys deposed Claire M. O’Donnell, deputy chief of staff to the vice president, who testified that the vice president and the Office of the Vice President were fully complying with their obligations under the Presidential Records Act.

The judge ultimately ruled that, “Plaintiffs were unable to rebut this representation through their discovery. The Court therefore has no basis on which to award Plaintiffs relief against the Vice President and the Office of the Vice President.”

National Archives Releases Initial Set
of 9/11 Commission Records

On January 14, 2009, the National Archives and Records Administration (NARA) opened more than 150 cubic feet of records of the National Commission on Terrorist Attacks upon the United States, known as the 9/11 Commission, an independent, bipartisan commission created by Congress. The records that were released represent thirty-five percent of the commission’s archived textual records.

NARA has posted the released Memoranda for the Record (MFRs) online. The MFR series contains summaries of 709 interviews that the 9/11 Commission conducted with federal, state, and local employees, individuals from the private sector, and scholars. These records also include information on the terrorists, past terrorist events, al Qaeda in general, and related subjects. The records also include information concerning the emergency responses to the attacks in New York City and Washington, DC.

Because some of the 9/11 Commission records contain current intelligence, highly classified information, and sensitive privacy information, NARA decided to prioritize the processing of segments of the collection. The records in this initial release have been screened for personal privacy and national security. Summaries of the interviews with New York City first responders are closed under an agreement reached between New York City and the commission. Graphic personal details concerning the victims of the attacks have also been withheld.

There are approximately 570 cubic feet of 9/11 Commission textual records. NARA will continue the process of the declassifying the remaining 420 cubic feet of textual records. NARA is also addressing the technical and classification issues surrounding the Special Media Records collection that contains 1,700 audiovisual items. NARA must also preserve electronic records totaling approximately 1.3 terabytes such as hard drives, servers, and e-mails. Prioritization of the remaining materials will be made after January 2009.

When the 9/11 Commission closed on August 21, 2004, it transferred legal custody of its records to the National Archives. Before it closed, the commission voted to encourage the release of its records to the fullest extent possible in January 2009. Because the commission was part of the legislative branch, its records are not subject to the Freedom of Information Act (FOIA).

National Park Service Director
Mary Bomar Retires

National Park Service (NPS) Director Mary A. Bomar has announced she would retire on January 20, capping a twenty-five-year federal career. Bomar became the seventeenth director of the National Park Service on Oct. 17, 2006.

Secretary of the Interior Ken Salazar has not yet named Bomar’s permanent replacement. Deputy Director Dan Wenk will serve as acting director until a new NPS director is nominated and confirmed.