A Historic Opportunity for Government Transparency

Keynote Address from John D. Podesta at American University Washington College of Law

SOURCE: Center for American Progress

John D. Podesta gave the keynote address and accepted the FOIA Legends Award on March 16, 2010.

Thank you, senator. It is truly an honor to accept this award from Sen. Patrick Leahy (D-VT), not only my mentor and a previous award winner, but also the person who has done more than anyone on Capitol Hill during the past three decades to ensure that government is open and transparent. Our democracy owes a great debt of gratitude to you, Sen. Leahy, and I’m deeply grateful that you continue to show such leadership in the Senate.

With your leadership, senator, the commitment of the Obama administration and the work of many of you in this room, we now have the opportunity to build the most open and transparent government in our nation’s history. And that is really is a striking turnaround.

In January 2001, only a few hours after I departed the West Wing for the last time, Attorney General John Ashcroft issued a memo that left no doubt about how the administration felt about freedom of information.

Many commentators have focused on the memo’s promise to defend all but the most indefensible decisions to deny access to public information, but I want to highlight something else Mr. Ashcroft said. Ashcroft’s memo warned that “no leader can operate effectively without confidential advice and counsel.” In its own right, that’s an unexceptional statement; he then ominously ordered federal agencies to “carefully consider” the need for confidential advice when they decided whether to deny a FOIA request.

Of course, we now know exactly what kind of confidential advice the Bush administration was trying to protect. Oil, coal, and other industry executives met in secret with Vice President Dick Cheney to design an energy policy that would ensure their interests were protected. Even simple requests from the Government Accountability Office, such as who was in the meetings, were denied. Attorneys like John Yoo and Jay Bybee, in confidential memos that have only recently been disclosed, authorized indefensible acts of torture. Our democracy cannot function as it should if voters are denied access to this sort of information.

Transparency helps ensure our leaders are operating responsibly and ethically. In 1973, a group of law students used a FOIA request to uncover a trail of corruption that eventually led to Vice President Spiro Agnew’s resignation. But for freedom of information, Vice President Agnew might have become president just a year later.

Where secrecy reigns, the consequences can be immense. If President Richard Nixon had not gone to such lengths to hide indefensible political tactics, he might have thought twice and never have permitted them in the first place. If the Bush administration had been less set on keeping secrets, they might have charted a better course for this country.

And there are other real-world implications that go beyond the fate of any particular official or political party. When the truth about President Bush’s detainee treatment policy was inevitably revealed, America not only lost moral stature in the international community, but America’s power to lead a coherent, robust campaign against violent extremism was weakened.

And that fact doesn’t suggest the need for more secrecy—which is Vice President Cheney’s prescription. Rather, we must build a system where these types of abuses and decisions can’t find the initial oxygen they need to survive.

In other words, our nation depends upon robust and free access to information not simply so that we can cast our votes wisely, but also so that our leaders make wiser decisions consistent with our laws, our constitution, and the national security interests of our people. So it is important that we ask whether our government is doing everything it can to foster open and transparent government.

The last year was a drastic improvement from the eight that preceded it. John Ashcroft’s memo has been replaced. Attorney General Eric Holder’s new memorandum gives federal agencies a simple instruction: “In the face of doubt, openness prevails.”

Similarly, there will be no more secret gatherings with industry executives. Business leaders still meet with White House officials, but the White House visitor logs are now available to the public. We know who advises the president, and we can follow up with questions about names on the list.

Yet while very real progress has been made this past year, there is still a long way to go. On the day President Barack Obama took office, over 130,000 FOIA requests languished in a backlog, and much of this backlog still remains. The report of the National Security Archive kicking off sunshine week indicates that the administration still has a long way to fulfill the guidelines on government transparency that President Obama issued on his first day in office. A FOIA request filed in December 1992 is still pending in the Department of Defense and the National Archives and Record Administration, according to the Justice Department’s most recent FOIA report.

It’s up to us, particularly those of us who generally support the thrust of the Obama administration’s openness policies, to keep demanding that the pace at which agencies process FOIA requests be sped up. But we also must be more proactive.

FOIA’s model, which allows citizens to request government information that isn’t already available, has served this country well. But it is not enough on its own. The truth is this: Americans too often have to resort to FOIA requests for information that should already be in the public domain.

We shouldn’t have to ask government to make public information available; public information should simply be available.

When the original FOIA legislation became law in 1966, it might have made sense to expect citizens to request information before government made it available to them. Forty-four years ago, computers were in their infancy. Businesses still conducted much of their communications through the postal service. And nothing resembling the World Wide Web had even been imagined. Placing vast quantities of government data at each citizen’s fingertips was impractical—if not outright impossible.

We cannot, however, let the constraints of the past guide our future. Today, government documents and datasets can be posted online with little more than a few clicks of a mouse. Google and other search engines enable users to sort through mind-boggling quantities of data to find the information they seek. Geographic information systems can place data on a map, empowering applications ranging from health workers discovering the source of disease outbreaks to government watchdogs tracking where federal dollars are being spent. With all this technology at our fingertips, it no longer makes sense for government to rely on an ad hoc, labor intensive process to disseminate information to the public.

To its credit, the Obama administration has embraced such a vision in its recently announced Open Government Directive. The directive instructs agencies to “proactively use modern technology to disseminate useful information.” The directive similarly calls for a presumption that all government information should be published online in a format that can be easily retrieved by major search engines.

Likewise, the Obama administration launched a number of websites intended to inform the American people, including Recovery.gov, which tracks spending under the Recovery Act and Data.gov, a clearinghouse of over 100,000 government datasets.

So the Obama administration embraces the need for government to be proactive in providing information to public, but many of the challenges that lie ahead aren’t philosophical; they are technical. Despite recent advances in information technology, many federal agencies still rely on outdated systems that are ill suited to today’s online world. One agency still uses mainframe computers from the 1980s.

The sheer volume of government information also presents a challenge. Although it can’t be an excuse for agencies not making data available online, the reality is the government’s archives swell with millions of pages of information, much of which is only available in paper format.

To the extent that this information is completely outdated, it would not be a good use of taxpayer dollars to place it online. Where such legacy information remains relevant to federal decision making, however, a strong presumption should exist in favor of making it available.

I began my speech by comparing Attorney General Ashcroft’s hostile attitude toward freedom of information to the more welcoming attitude of Attorney General Holder—but I didn’t tell the entire story.

The Holder memorandum closely tracks a memo that Attorney General Janet Reno authored at the beginning of the Clinton administration. Under current law, the public’s access to information can ebb and flow with each administration, and the reforms President Obama has worked so hard to put in place could be wiped out almost overnight by the next president.

I am particularly proud of having served in an administration led by President Clinton and Vice President Al Gore who, both individually and together, championed the declassification and release of over 1 billion pages of historically valuable records including the overhead imagery of Corona, Argon, and Lanyard systems; undersea sonar data; extensive information of the Venona project and other historic crytologic documents; the Kennedy assassination records; and I can go on and on. But those efforts came to an abrupt halt on January 20, 2001.

Now, let me be clear, I believe that elections should have consequences. But one of those consequences should not be a closed and secretive government. Accordingly, I would urge Congress to codify the presumption of disclosure embraced by this administration, and I would urge them to do so before President Obama leaves office.

We are in the midst of an historic moment for government transparency. We have the technology to build an informed and engaged electorate. We have courageous leaders who do not fear the exposure that sunlight will bring, and we have the opportunity to open our government for generations to come. I urge us all to embrace that opportunity.

Thank you very much.