Thursday, January 22, 2009

Change: Open Government; Transparency; FOIA; Executive Privilege

Jan 21: Acting quickly, to set the tone of the Obama Administration, President Obama issued two Executive Orders and two Presidential Memos that are designed to make the government more open and transparent. Additionally, in a symbolic move, recognizing the severe economic crisis facing the country, the President issued a Memo calling for a freeze in the salaries of senior members of the White House staff. The President said, "Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency."

The first Executive Order deals with "Presidential Records" and establishes policies and procedures governing the assertion of executive privilege by incumbent and former Presidents in connection with the release of Presidential records by the National Archives and Records Administration (NARA) pursuant to the Presidential Records Act of 1978. The Order revokes Executive Order 13233 of November 1, 2001, and establishes new, more open procedures that make it more difficult to withhold information based on a claim of Executive Privilege.

The second Executive Order deals with "Ethics Commitments by Executive Branch Personnel." The order requires every appointee in every executive agency appointed on or after January 20, 2009, to sign, and be contractually committed to an Ethics Pledge. The pledge includes a ban on gifts from registered lobbyists or lobbying organizations; a "Revolving Door Ban" for "appointees," requiring that for a period of 2 years from the date of an appointment an employee will not participate in any particular matter involving specific parties that is directly and substantially related former employment; and, a "Revolving Door Ban" for "Lobbyists Entering Government," prohibiting various actions for a period of 2 years after the date of appointment. The order includes a similar ban on activities for appointees and lobbyists "leaving government."

The 2-page Memo on the Freedom of Information Act indicates, "In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike. The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. . . In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public. . . All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. . . I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. . ."

The 2-page Memo on Transparency and Open Government indicates, "My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government." It contains paragraphs on: Government should be transparent; and Government should be participatory; Government should be collaborative. It calls for the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB) and the Administrator of General Services, to coordinate the development by appropriate executive departments and agencies, within 120 days.

Access the EO on Presidential Records (
click here). Access the EO on Ethics (click here). Access the Memo on FOIA (click here). Access the Memo on Open Government (click here). Access the Memo on Pay Freeze (click here). [*All]