Collaboration on Government Secrecy ("CGS")


Mission Statement

The Collaboration on Government Secrecy ("CGS") is a non-partisan educational project devoted to openness in government, freedom of information, government transparency, and the study of "government secrecy" in the United States and internationally. Its mission is to, among other things:

  • foster both academic and public understanding of these subjects by serving as a center of superior expertise, detailed scholarly research, and comprehensive information resources;
  • promote the accurate delineation and development of legal and policy issues arising in this subject area;
  • conduct leading-edge educational programs and related activities for interested members of the academic and openness-in-government communities; and
  • become the premier clearinghouse for this area of law both in the United States and worldwide.

About

The Collaboration on Government Secrecy ("CGS") was created in 2007 as a non-partisan academic project devoted to the study of government openness versus secrecy, as two sides of the same coin. Formed initially under the auspices of the Program on Law and Government in the Washington College of Law ("WCL") at American University in Washington, D.C., as the first such academic center of its kind at any law school in the world, it now operates in conjunction with both the JD and LLM/SJD degree programs at WCL and is designed to afford law students interested in this area of legal specialization the opportunity to gain both scholarly and practical experience in the growing fields of both domestic and international transparency. CGS is headed by former Department of Justice Office of Information and Privacy Director Daniel J. Metcalfe, who founded that governmentwide transparency policy office in 1981, now teaches government secrecy law at WCL, and serves as CGS's executive director.

Staff

  • Eric J. Struening (WCL 3L), Senior Research Assistant and Web Editor
  • Julia V. Svintsova (WCL 3L), Senior Research Assistant
  • Claudia A. Trotch (WCL 3L), Senior Research Assistant

Frequently Asked Questions

Useful Links

Other Similar Centers

Holder FOIA Memorandum

OMB Open Government Directive

U.S. "National Action Plan"

Pseudosecrecy Executive Order

AG Memorandum on 1986 FOIA Amendments

CGS in the News

Upcoming Events

  • Sunlight Foundation "Transparency Camp," May 29-June 2, 2014
  • CGS's "Eighth Annual International Right-to-Know Day Celebration," Sept. 29, 2014
  • CGS's "Eighth Annual Freedom of Information Day Celebration," March 16, 2015

CGS Programs to Date (23)

CGS Program Speakers (207)

Major Content Sections (Table of Contents)

Federal Access Statutes

Attorney General FOIA Memorandum

Ever since the Carter Administration, the Department of Justice has encouraged compliance with the Freedom of Information Act throughout the executive branch through, among other means, the issuance of an "Attorney General FOIA Memorandum" that most fundamentally establishes the exact standard according to which the Justice Department will decide whether to defend an agency's action under the FOIA when challenged in court. This memorandum also traditionally sets the tone for the FOIA's implementation and communicates a new administration's overall policy toward it. See, e.g., "Tell Us More," Legal Times (Dec. 8, 2008). In May 1977, Attorney General Griffin B. Bell issued the first such memorandum, establishing a pro-requester "demonstrable harm" standard for applying FOIA exemptions. It was superseded in May 1981 by a memorandum issued by Attorney General William French Smith that established a "substantial legal basis" standard in its place, a far more conservative standard that prevailed during both the Reagan Administration and the Administration of President George H.W. Bush. Then on October 4, 1993, Attorney General Janet Reno established a very pro-requester "foreseeable harm" standard, which operated together with its twin policy of "discretionary disclosure." On October 12, 2001, Bush Administration Attorney General John D. Ashcroft issued a memorandum that replaced that defensibility standard with one of "sound legal basis," though it spoke of "discretionary disclosure" as well. Most recently, on March 19, 2009, Attorney General Eric H. Holder, Jr. issued an Attorney General FOIA Memorandum that aimed to return FOIA policy to the exact same "foreseeable harm" standard that was employed under Attorney General Reno during the Clinton Administration. It remains to be seen how quickly and to what extent this policy, which was ordered by President Obama, is implemented throughout the executive branch. See, e.g., Sunshine Not So Bright: FOIA Implementation Lags Behind, 34 Admin. & Reg. Law News 5 (Summer 2009); CGS Testimony Before House Oversight and Government Reform Committee (Mar. 17, 2011). Details and up-to-date status information are below.

TRANSPARENCY IN THE OBAMA ADMINISTRATION

In a sweeping "Day One" memorandum to the heads of all executive branch departments and agencies that has the effect of an executive order, President Barack Obama declared his exceptionally strong commitment to government transparency: "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. . . . Government should be transparent." Entitled "Transparency and Open Government," this unprecedented presidential directive called upon federal agencies to "harness new technologies" to make information about their operations "readily available to the public" and to "provide[] information for citizens about what their Government is doing" in their name. Toward that end, and the prompt end of an era of secrecy, President Obama directed his incoming Chief Technology Officer (an Associate Director of the White House's Office of Science and Technology Policy) to coordinate the development of a set of "recommendations for an Open Government Directive," within the next 120 days (i.e., by May 21) -- as the basis for a directive "that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum." And in a companion directive on the Freedom of Information Act directly, the White House announced, President Obama "instruct[ed] the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context."

In other words, on January 21 two 120-day clocks began ticking toward action required by May 21, and then well into the Obama Administration thereafter -- all of which provides a unique opportunity for those who are most interested in and concerned about government transparency and secrecy (as two sides of the same coin), and government information policy more broadly, to involve themselves in these areas of public policy development and implementation. And they may do so, as President Obama has put it, in a manner that is both "participatory" and "collaborative" with federal government agencies.

On May 21, the Obama Administration did not meet this "Open Government Directive" deadline, but rather established a process by which further work would be done, with public participation, toward that end. See "Obama Administration Secrecy/Transparency Scorecard." (This process, as well as future such activities, can be tracked through the following link: http://www.whitehouse.gov/open/blog/.) Details and up-to-date status information are below.

DECEMBER 8, 2009 UPDATE: Today the White House issued its much-anticipated and long-overdue "Open Government Directive," which as predicted bypassed the "recommendations" step of President Obama's January 21 Transparency and Open Government Memorandum and proceeded to "direct executive departments and agencies to take specific actions to implement the principles of transparency, participation, and collaboration." Among other things, it calls upon all federal agencies to: (1) "create and institutionalize a culture of open government"; (2) "create an enabling policy framework for open government"; (3) "create an unprecedented and sustained level of openness and accountability"; (4) within 120 days, "develop and publish on [their newly created] Open Government Webpage an Open Government Plan"; (5) "take steps to reduce any . . . significant pending backlog of outstanding Freedom of Information requests . . . by ten percent each year"; and (6) "publish [their] annual Freedom of Information Act Report in an open format on its Open Government Webpage in addition to any other planned [sic] dissemination methods." (As for the last requirement, it is written as if agencies have not openly published their annual FOIA reports on their Web sites, and in consolidated fashion on the Department of Justice's FOIA Web site, to begin with.) Primary responsibility for the governmentwide implementation of this directive rests with the Information Policy Branch within the Office of Information and Regulatory Affairs at the Office of Management and Budget.

DECEMBER 29, 2009 UPDATE: Today President Obama met expectations by issuing an executive order on national security classification, Executive Order 13,526, which as of its effective date of June 27, 2010 will govern the classification of records on national security grounds during his Administration. Most significantly, it (1) "establishes a National Declassification Center at the National Archives to enable agency reviewers to perform collaborative declassification"; (2) "establishes the principle that no records may remain classified indefinitely"; and (3) "eliminates an Intelligence Community veto of certain decisions [made] by the Interagency Security Classification Appeals Panel," a controversial feature that had been added by the Bush Administration amendment (Exec. Order No. 13,292) of the existing Clinton Administration Executive Order 12,958. Somewhat surprisingly, President Obama did not merely amend that existing executive order, as his predecessor had done; rather, he issued a classification order that completely supplants the existing one, just as ordinarily has been done in the past. It came as no surprise, however, that this new executive order effectively extends the deadline for all "automatic declassification" that otherwise would have been required to be accomplished by December 31, 2009.

In a separate presidential memorandum issued simultaneously, entitled "Presidential Memorandum -- Implementation of the Executive Order, 'Classified National Security Information,'" President Obama addressed "initial implementation efforts," placed further emphasis on declassification by speaking of a declassification "backlog," and very specifically called upon agencies to provide "public access to all declassified records from this backlog no later than December 31, 2013." He also pointedly stated: "I expect that the order will produce measurable progress towards greater openness and transparency in the Government's classification and declassification programs while protecting the Government's legitimate interests, and I will closely monitor the results." Additionally, a companion issuance that bears the title "Executive Order" but evidently lacks that formal status, entitled "Original Classification Authority," formally designates the heads of agencies or agency components who hold the authority to classify records, including several added after 9/11. This all was announced through a detailed entry on "The White House Blog" authored by National Security Council Senior Director William H. Leary, a speaker at CGS's "Transparency in the Obama Administration: A First-Year Assessment" program on January 20, 2010.

Office of Government Information Services (OGIS)

The basic idea of having a central federal office responsible for overseeing the administration of the Freedom of Information Act on a governmentwide basis is one that traces back several decades at the Department of Justice. In 1981, the Justice Department created the Office of Information and Privacy (OIP) for just that purpose, to great effect, and it even engaged in a "FOIA Ombudsman" function to a necessarily limited extent. In late 2007, however, Congress amended the FOIA to create an additional office -- the Office of Government Information Services (OGIS), within the National Archives and Records Administration -- to play a heavy role in overseeing governmentwide FOIA administration, in an "ombudsman" capacity, as well. Initially, the very establishment of OGIS was blocked by the Bush Administration, when appropriated funds for it were misallocated during 2008. But under the Obama Administration, OGIS received initial start-up funding and Miriam M. Nisbet became its founding director.

OGIS began operating in September 2009 and very quickly made its mark by successfully offering a variety of expert services to both FOIA requesters and agencies alike, notably including mediation and ombudsman-related support. More recently, it has increasingly provided substantive and procedural policy guidance to agency FOIA personnel, as well as sound executive leadership on FOIA matters, much the same as OIP did when it came into existence three decades earlier. Today, OGIS is a most significant part of the Freedom of Information Act landscape, though its overlap in jurisdiction with OIP is less than clear. Details and up-to-date status information are below.

Amendment of the FOIA

The history of the Freedom of Information Act traces back more than six decades, with major legislative developments occurring with remarkable regularity approximately every ten years. The FOIA was presaged by the enactment of the Administrative Procedure Act, 5 U.S.C. § 1002, in 1946. A decade later, in 1955 and 1956, Congress began the legislative process that culminated in the FOIA's enactment in 1966. Slightly less than a decade after that, and spurred by what came to be known as the "Watergate scandal," Congress enacted major FOIA amendments at the end of 1974. And then in 1986 and again in 1996, on what became a decade-long cycle, the FOIA was the subject of further major revisions. The FOIA Amendments of 2007, delayed perhaps by an unprecedented presidential executive order issued in 2005 (see below), continued that pattern of legislative activity.

Several bills were considered during the 110th Congress prior to enactment of the 2007 FOIA Amendments. One, H.R. 1309, was passed by the House on March 14, 2007. Another, S. 849, was passed by the Senate on August 3. It was reintroduced in revised form as S. 2427 on December 6 and then was modified and introduced on December 14 as S. 2488 -- which was passed by the Senate on that same day and then was passed by the House on December 18. This bill was signed into law on the last possible day before it would have become law automatically under Art. I, Sec. 7 of the Constitution, on December 31, 2007. This amendment process raised the question of whether Congress would "break the mold" of the FOIA's longstanding ten-year amendment cycle by amending the Act again before the passage of another decade. See The Cycle Continues: Congress Amends the FOIA in 2007, 33 Admin. & Reg. L. News 11 (Spring 2008).

It did not take Congress long to answer that question, however, as it soon thereafter amended the Act once again, through the "OPEN FOIA Act of 2009," with respect to Exemption 3, effective as of October 28, 2009, and closely related legislative proposals have been introduced as well, including one that would go so far as to create an Exemption 10. And in the wake of the Supreme Court's evisceration of Exemption 2 in Milner v. Department of the Navy, 131 S. Ct. 1259 (Mar. 7, 2011), and the unanimous passage of a FOIA reform bill (H.R. 1211) by the House in early 2014, further amendment of the FOIA again looms large. See, e.g., CGS Testimony Before the Senate Judiciary Committee (Mar. 11, 2014). Details of relevant legislative history and implementation below.

FOIA in the Supreme Court

In the more than four decades since its enactment, the Freedom of Information Act has been the subject of thirty-two major decisions by the United States Supreme Court. From 1973 to 1985 alone, the Supreme Court issued nineteen FOIA decisions, often at a rate of two or more per year, as the interpretation of the Act's provisions developed extensively through the evolution of case law. Over the past two decades, as the FOIA has matured, the pace has slowed, with only a dozen FOIA decisions issued by the Court during this period. There have been several "near misses" over the years, in which a FOIA case has reached the Supreme Court but the Court's consideration of the case has fallen through, sometimes at the last minute, due to external events such as withdrawal of the underlying FOIA request or a legislative enactment. In a handful of instances, the Court has declined to take a FOIA case even though the party seeking certiorari was the government agency. Additionally, the Court has had occasion to address the need for the issuance of a stay in a FOIA case, in order to preserve the status quo pending further appeal, and it has done so through opinions written by its members in their Circuit Justice capacity. Details and up-to-date status information are below.

MARCH 7, 2011 UPDATE: Today, in one of the most consequential FOIA decisions in recent memory, the Supreme Court decided Milner v. Department of the Navy by ruling 8-1 that the government's longstanding use of Exemption 2 for "anti-circumvention" protection is too much of a "stretch" from that exemption's actual language, and it must immediately cease. In a majority opinion authored by Justice Kagan, the Court firmly rejected the concept of "High 2" that was established by D.C. Circuit in its en banc Crooker v. BATF decision in 1981 and has been used by federal agencies to withhold increasing amounts of security-related information in the three decades since then, especially since 9/11. Justice Kagan's opinion closely analyzed the language of Exemption 2 -- "related solely to the personnel rules and practices of an agency" -- and concluded that "the Crooker interpretation . . . suffers from a patent flaw: It is disconnected from Exemption 2's text." She reasoned that the word "personnel" means "employee relations or human resources," that it "by no stretch of the imagination" relates to the Navy maps of explosives safety distances at issue, and that Crooker had established "anti-circumvention" protection "with no basis or referent in Exemption 2's language." In sum, she declared, "High 2 is better labeled 'Non 2' (and Low 2 . . . just 2)." (Note: "Low 2" should be regarded as a "dead letter," and not invoked, under the current "foreseeable harm" standard of the Holder FOIA Memorandum.) Significantly, she also explicitly relied on "the rule favoring narrow construction of FOIA exemptions." And as for the consequences of the Court's decision, she stated: "[W]e acknowledge that our decision today upsets three decades of agency practice relying on Crooker, and therefore may force considerable adjustments. . . . All we hold today is that Congress has not enacted the FOIA exemption the Government desires. We leave to Congress, as is appropriate, the question whether it should do so." Justice Alito filed a concurring opinion suggesting the availability of Exemption 7(F) for "security information," and Justice Breyer in dissent warned that "legislative action takes time"; he stated his preference, in the case of Crooker and "High 2," to "let sleeping legal dogs lie."

MARCH 1, 2011 UPDATE: Today the Supreme Court issued a decision reversing the Third Circuit Court of Appeals on the issue of whether corporations and "other artificial entities" are entitled to "personal privacy" protection under the FOIA's privacy exemptions, primarily Exemption 7(C). In an opinion authored by Chief Justice Roberts, it unanimously held that they are not, based upon the "ordinary usage" of the word "personal" and also the "context" in which Congress used the term "personal privacy" in enacting both Exemption 7(C) in 1974 and Exemption 6 in 1966. Chief Justice Roberts followed the line of analysis advocated by CGS in its amicus brief by reasoning that ". . . the 'personal privacy' phrase [in Exemption 6] importantly defines the particular subset of that information Congress sought to exempt. . . . the reach of that phrase in Exemption 6 is pertinent in construing Exemption 7(C)." Remarkably, Chief Justice Roberts' opinion not only ruled against AT&T soundly and across the board, it concluded with the following ringing message: "We trust that AT&T will not take it personally."

SEPTEMBER 28, 2010 UPDATE: Today the Supreme Court granted certiorari in FCC v. AT&T Inc., a case presenting the novel question of whether corporate entities have "privacy interests" cognizable under the personal privacy exemptions of the FOIA, Exemptions 7(C) and (by extension) Exemption 6. The Third Circuit Court of Appeals, in an unprecedented decision issued in September of last year and published at 582 F.3d 490 (3d Cir. 2009), held that such protection is available under the FOIA -- a ruling with which the government strongly disagrees. Because the Court's newest member had as Solicitor General been involved in the filing of the government's certiorari petition in April of this year prior to her nomination, the Order granting certiorari noted that "Justice Kagan took no part in the consideration or decision of this petition." The case can be expected to be argued sometime in January-March, with a decision issued by no later than the end of June 2011.

JUNE 28, 2010 UPDATE: Today the Supreme Court surprisingly granted certiorari in Milner v. Department of the Navy, a case that presents the fundamental issue of whether the language of Exemption 2 can be applied to information the disclosure of which could reasonably be expected to enable the circumvention of law, including in a homeland security context. Both the district court and the Ninth Circuit Court of Appeals ruled that the information at issue -- "technical explosive and ammunition safety maps" used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island in Washington State -- properly falls within the "high 2," anti-circumvention aspect of the exemption as construed by the D.C. Circuit Court of Appeals in its seminal decision of Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1050 (D.C. Cir. 1981) (en banc), nearly 30 years ago. Most significantly, the Supreme Court granted certiorari on the FOIA requester's petition here -- a rare occurrence -- suggesting that the Court (or at least four Justices, including perhaps retiring Associate Justice John Paul Stevens) is interested in considering Exemption 2's stilted language in relation to its long-term, near-universal application by both agencies and the courts alike. The case is likely to be argued before the Court by the end of the year. (As a side note, Solicitor General Elena Kagan did not sign the government's certiorari opposition when it was filed in late May after her nomination to the Court, so presumably she would upon confirmation be eligible to participate in the case's adjudication.) The Ninth Circuit's decision, certiorari petition, and all briefs filed with the Court are below. (Note that argument in the case now has been scheduled for Dec. 1, 2010.)

NOVEMBER 30, 2009 UPDATE: Today the Supreme Court "GVR'd" the DOD v. ACLU case -- meaning that the government's certiorari petition was granted, its request for vacatur of the appellate decision below was granted, and the case was remanded "for further consideration in light of Section 565 of the Department of Homeland Security Appropriations Act, 2010, and the certification by the Secretary of Defense pursuant to that provision." (It is not yet clear whether Section 565 qualifies as an "Exemption 3 statute" by its terms, including in relation to its companion provision, Section 564.) Interestingly, as the case arose from the Court of Appeals for the Second Circuit, the Court specified that "Justice Sotomayor took no part in the consideration or decision of this petition."

JUNE 12, 2008 UPDATE: Today the Supreme Court issued its decision in Taylor v. Sturgell, in which it reversed the lower court's decision (written by Circuit Judge Douglas H. Ginsburg of the Court of Appeals for the District of Columbia Circuit) and ruled that, as a sound general rule, courts "should not proscribe or confine successive FOIA suits [i.e., for the same records] by different requesters." Writing for a unanimous Court, Justice Ruth Bader Ginsburg rejected the D.C. Circuit's "broad theory of virtual representation," concluding that while "it is theoretically possible that several persons could coordinate to mount a series of repetitive [FOIA] lawsuits," there is insufficient "risk" of "vexatious litigation" or "abusive FOIA suits" to warrant such a harsh preclusive rule for successive lawsuits brought under the FOIA. This is the thirtieth FOIA case decided at the Supreme Court level (and, putting aside the commonality of the two jurists' names, might be the first time in which the Supreme Court has reversed a decision written by a failed nominee to the Court.)

JANUARY 11, 2008 UPDATE: Today the Supreme Court granted certiorari in Taylor v. Sturgell, a FOIA case that presents the question of whether a FOIA requester can properly be precluded, under the principles of res judicata and "virtual representation," from pursuing a FOIA request for the same records that were unsuccessfully sued for by a "close associate" who was represented by the same attorney. The Court of Appeals for the District of Columbia Circuit, in an opinion authored by Chief Circuit Judge Douglas H. Ginsburg, ruled against the requester on that basis in June 2007. This is the first FOIA case to be taken by the Court in four years, albeit on a procedural issue that transcends the statute, and it is expected to be decided before the end of the Court's current Term. The D.C. Circuit's decision, certiorari petition, and all briefs filed with the Court are below.

"Post-9/11" FOIA Litigation

In the years since the terrorist attacks of September 11, 2001, a new category of Freedom of Information Act litigation cases has arisen in the wake of those events and their aftermath. Such cases involve new fact patterns and issues that are distinctly "post-9/11" in character, as they deal with information consisting of or bearing upon matters of "homeland security" that prior to 2001 were barely part of the national landscape. While many such cases have been adjudicated under Exemption 2 of the FOIA, a comprehensive compilation includes cases decided under other FOIA exemptions as well. Details and up-to-date status information are below.

MARCH 7, 2011 UPDATE: Today, in one of the most consequential FOIA decisions in recent memory, the Supreme Court decided Milner v. Department of the Navy by ruling 8-1 that the government's longstanding use of Exemption 2 for "anti-circumvention" protection is too much of a "stretch" from that exemption's actual language, and it must immediately cease. In a majority opinion authored by Justice Kagan, the Court firmly rejected the concept of "High 2" that was established by D.C. Circuit in its en banc Crooker v. BATF decision in 1981 and has been used by federal agencies to withhold increasing amounts of security-related information in the three decades since then, especially since 9/11. Justice Kagan's opinion closely analyzed the language of Exemption 2 -- "related solely to the personnel rules and practices of an agency" -- and concluded that "the Crooker interpretation . . . suffers from a patent flaw: It is disconnected from Exemption 2's text." She reasoned that the word "personnel" means "employee relations or human resources," that it "by no stretch of the imagination" relates to the Navy maps of explosives safety distances at issue, and that Crooker had established "anti-circumvention" protection "with no basis or referent in Exemption 2's language." In sum, she declared, "High 2 is better labeled 'Non 2' (and Low 2 . . . just 2)." (Note: "Low 2" should be regarded as a "dead letter," and not invoked, under the current "foreseeable harm" standard of the Holder FOIA Memorandum.) Significantly, she also explicitly relied on "the rule favoring narrow construction of FOIA exemptions." And as for the consequences of the Court's decision, she stated: "[W]e acknowledge that our decision today upsets three decades of agency practice relying on Crooker, and therefore may force considerable adjustments. . . . All we hold today is that Congress has not enacted the FOIA exemption the Government desires. We leave to Congress, as is appropriate, the question whether it should do so." Justice Alito filed a concurring opinion suggesting the availability of Exemption 7(F) for "security information," and Justice Breyer in dissent warned that "legislative action takes time"; he stated his preference, in the case of Crooker and "High 2," to "let sleeping legal dogs lie."

JUNE 28, 2010 UPDATE: Today the Supreme Court surprisingly granted certiorari in Milner v. Department of the Navy, a case that presents the fundamental issue of whether the language of Exemption 2 can be applied to information the disclosure of which could reasonably be expected to enable the circumvention of law, including in a homeland security context. Both the district court and the Ninth Circuit Court of Appeals ruled that the information at issue -- "technical explosive and ammunition safety maps" used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island in Washington State -- properly falls within the "high 2," anti-circumvention aspect of the exemption as construed by the D.C. Circuit Court of Appeals in its seminal decision of Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1050 (D.C. Cir. 1981) (en banc) nearly 30 years ago. Most significantly, the Supreme Court granted certiorari on the FOIA requester's petition here -- a rare occurrence -- suggesting that the Court (or at least four Justices, including perhaps retiring Associate Justice John Paul Stevens) is interested in considering Exemption 2's stilted language 2 in relation to its long-term, near-universal application by both agencies and the courts alike. The case is likely to be argued before the Court by the end of the year. (As a side note, Solicitor General Elena Kagan did not sign the government's certiorari opposition when it was filed in late May after her nomination to the Court, so presumably she would upon confirmation be eligible to participate in the case's adjudication.)

National Security Classification

The classification and protection of information on national security grounds has historical antecedents tracing back to the founding of the Nation but is of relatively recent vintage, arising in the post-World War II era with the dawn of the "atomic age" and the "Cold War." See, e.g., The Nature of Government Secrecy, 26 Gov't Info. Quarterly 305 (2009). Or in the words of the current executive order on national security classification, Executive Order 13,526 (Dec. 29, 2009): "[T]hroughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations." In a post-9/11 world, this now includes matters of transnational terrorism and, from a homeland security standpoint, "weapons of mass destruction."

Founded on presidential authority and responsibility under Article III of the Constitution, this realm of secrecy connects both to the withholding of requested information under Exemption 1 of the Freedom of Information Act and to the invocation of what is known as the state secrets privilege in non-FOIA litigation. But it is distinct from the realm of "pseudosecrecy," in which agencies apply the "safeguarding" label of "Controlled Unclassified Information (CUI)" to records under Executive Order 13,556 (Nov. 4, 2010).

Now, after decades of national security classification actions on millions or even billions of pages of records, the matter of information declassification, including on an "automatic" and "categorical" basis, as well as through more specific "mandatory declassification review," looms large. So, too, does the Reducing Over-Classification Act, Public Law 111-258, which became law on Oct. 7, 2010. And in this "WikiLeaks era," matters of "leaks" of classified information and "surveillance secrecy" abound. Details and up-to-date status information are below.

Exemption 3 Statutes

One of the most controversial exemptions to the Freedom of Information Act is Exemption 3, which essentially incorporates the disclosure prohibitions that are contained in other federal statutes. Under its terms, as amended in 1976, a statute qualifies as an "Exemption 3 statute" only if it "(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." This has led to much uncertainty over the years as hundreds of different provisions of law have been invoked as "Exemption 3 statutes" by agencies over the years but fewer than six dozen have been upheld as such in FOIA cases challenging them.

Currently, agencies report using more than 300 separate statutes to withhold information on this basis. A careful academic analysis, however, reveals that fewer than 160 distinct provisions of law truly qualify as Exemption 3 statutes, regardless of what agencies have invoked as such and what courts have had occasion to consider in FOIA litigation to date -- and they are listed below in the first such definitive compilation. They do include Rules 6(e) and 32 of the Federal Rules of Criminal Procedure, as those rules have been codified by statute. They do not include the Trade Secrets Act and the Copyright Act of 1976, despite misconceptions to the contrary, and neither do they include many statutory provisions that are relied upon by agencies but simply do not, on close examination, prohibit any public disclosure. Nor should they be confused with similar "operational files" provisions by which such files of several intelligence agencies have been removed from the FOIA's reach as a threshold matter. And from now on, under the 2009 FOIA Amendment, no newly enacted provision of law will qualify under Exemption 3 unless it "specifically cites to" it. Details and up-to-date status information are below.

State Secrets Privilege

The state secrets privilege is a major part of the secrecy/transparency landscape. First recognized by the United States Supreme Court in the Cold War-era case of United States v. Reynolds, 345 U.S. 1 (1953), this privilege is the rough equivalent of Exemption 1 of the Freedom of Information Act in that it provides a basis upon which a federal executive branch agency can refuse to disclose information, in the context of civil discovery, on national security grounds. Unlike mere FOIA nondisclosure and the classification of information on national security grounds, however, invocation of the state secrets privilege as it has evolved in case law during the past half-century can yield the complete dismissal of a lawsuit against the government (or, in some instances, a government contractor) if it is determined that the suit cannot be maintained without inevitably disclosing the national security secret(s) that necessarily are involved. Use of this broadly preclusive form of the privilege, as well as the frequency of the privilege's use overall, has increased markedly over the course of recent decades, with more than 125 state secrets privilege cases now having been decided on the basis of this privilege.

One of the most controversial aspects of the last presidential administration's secrecy regime was its very aggressive use of the state secrets privilege to achieve virtual immunity from suit in cases involving notorious matters such as extraordinary rendition, alleged torture of military detainees, and warrantless domestic wiretapping surveillance. The advent of the Obama Administration brought great expectations for the state secrets privilege's reform, within the executive branch on a case-by-case basis, in accordance with President Obama's overall policy of transparency -- but it remains to be seen when, if ever, these expectations will be met. See "Obama Administration Secrecy/Transparency Scorecard." Meanwhile, Congress has shown its strong interest in this subject area, as state secrets reform legislation has been introduced in the 110th and 111th Congresses, with one bill, H.R. 984 (111th Cong.), advancing through the House Judiciary Committee, and a second bill, S. 417 (111th Cong.), pending in the Senate.

In light of this, and given its time-sensitivity, the Collaboration on Government Secrecy held an academic conference on this subject on November 18, 2009, gathering most of the leading thinkers and practitioners in the field to explore the privilege's further development as it enters the next decade of its use. With participation by both Bush Administration and Obama Administration officials, this conference focused on the current state of the law, on new state secrets litigation policies and procedures adopted by the Department of Justice, on the prospects for remedial legislative attention to the subject, and on the conceptual contours that the privilege ought to take going forward from an academic perspective. It also led to the preparation of a comprehensive list of state secrets privilege cases to date (with status information provided for all cases still pending), together with a full academic compilation of related materials. Details and up-to-date status information are below.

Pseudosecrecy

A relatively little-known part of the government secrecy realm is the growing use by federal agencies of document labels to "safeguard" unclassified records and information. Such labels -- most notably, "Sensitive But Unclassified (SBU)," "For Official Use Only (FOUO)," and "Law Enforcement Sensitive (LES)" -- have proliferated largely since 9/11, to the point at which they are the cause of widespread "secrecy" concerns (and often misperceptions) both inside and outside of government. Simply put, the use of a label such as "SBU" to safeguard a document within an agency (or when shared with other governmental counterparts) does not necessarily mean that it falls within a FOIA exemption or is "secret" in the commonly understood sense of that word. To be sure, there are some such designations that are connected to the disclosure prohibitions of certain Exemption 3 statutes -- such as "Sensitive Security Information (SSI)" and "Protected Critical Infrastructure Information (PCII)" -- but these few are exceptions to the rule, with more than 100 different safeguarding labels now in use throughout the executive branch. This area of federal information policy, which can be referred to as "pseudosecrecy," has been the subject of protracted efforts within the executive branch to improve the clarity and consistency of agency information-safeguarding practices for unclassified records for many years.

Shortly after 9/11, an initiative was begun, under the auspices of the newly created White House Office of Homeland Security, to establish a standard category of homeland security-related information that could be "safeguarded" by federal agencies and possibly protected by Exemption 2 of the FOIA as well. Known as "Sensitive Homeland Security Information (SHSI)," this incipient designation subsequently was included within Section 892 of the Homeland Security Act of 2002, 6 U.S.C. § 482, as a basis for its potential use throughout the executive branch. That same year, though, the White House issued a memorandum, in conjunction with the Department of Justice, that addressed both classified information and "sensitive but unclassified" information pertaining to "weapons of mass destruction" such as anthrax-related materials. As the use of the broader designation "SBU" subsequently proliferated widely, and in the continued critical absence of any governmentwide standardization, a presidential directive ultimately was issued late in 2005 that required the Attorney General and the Director of National Intelligence to prepare and submit for presidential approval specific recommendations for "the standardization of SBU procedures" within one year. The fact that this explicit requirement remained unmet more than two years later was one of the subjects addressed at CGS's FOI Day program on March 17, 2008, and it has been the subject of congressional attention as well. Details and up-to-date status information are below.

NOVEMBER 4, 2010 UPDATE: Today President Barack Obama issued an unprecedented executive order addressing what he called an "inefficient, confusing patchwork [of] inconsistent marking and safeguarding of documents" under the more than 120 existing "safeguarding labels" that currently are used by different agencies throughout the executive branch. In a seeming culmination of more than nine years of unsuccessful government attention to the growing proliferation of such labels within the murky realm of what often is called "pseudosecrecy," he issued Executive Order 13,556 with the aim of establishing a "uniform program" centered "exclusive[ly]" around the label "Controlled Unclassified Information" ("CUI"). Rather than address the subject comprehensively, however, he left it to a designated "Executive Agent," the Information Security Oversight Office (ISOO) at the National Archives and Records Administration, to "develop and issue such directives as are necessary to implement this order." Presumably, those directives, which are scheduled to be issued by May 3, 2011 through a process promised to include "consult[ation] with . . . the public," will contain some elaboration on the fundamental scope and meaning of the term "Controlled Unclassified Information," which the executive order itself does not attempt to define.

MAY 27, 2009 UPDATE: Today the White House issued a memorandum to the heads of all executive departments and agencies entitled, "Classified Information and Controlled Unclassified Information," in which President Obama observed that the existing process for implementing a "CUI framework" under the Bush CUI memorandum of May 9, 2008 now "is not expected to be completed until 2013" -- despite the fact that "the persistence of multiple categories of SBU, together with institutional and perceived technological obstacles . . . continue to impede collaboration and the otherwise authorized sharing of SBU information." He therefore concluded that "new measures should be considered to further and expedite agencies' implementation of appropriate frameworks for standardized treatment of SBU information and information sharing." Toward that end, he established, under the joint leadership of the Attorney General and the Secretary of Homeland Security, "an Interagency Task Force on CUI," which among other things will "review current procedures for categorizing and sharing SBU information in order to determine whether such procedures strike the proper balance among the relevant imperatives." This task force is charged with making recommendations on "how the executive branch should proceed" regarding CUI/SBU within ninety days (i.e., by August 25, 2009).

MAY 9, 2008 UPDATE: Today the White House issued a memorandum to the heads of all executive departments and agencies entitled, "Designation and Sharing of Controlled Unclassified Information (CUI)," which establishes "CUI" as a new standard safeguarding label of choice for unclassified information, defines CUI with little limitation, delegates case-by-case CUI designation authority to the heads of all departments and agencies, and requires the National Archives and Records Administration (NARA) to serve as the "Executive Agent" responsible for "overseeing and managing implementation of this CUI Framework." This memorandum was rescinded by Section 6(g) of Executive Order 13,556 (Nov. 4, 2010).

Transparency Worldwide

The enactment of the Freedom of Information Act in 1966 was a landmark development, but it was not the first of its kind. Such a law was adopted in Sweden two centuries earlier, in 1766, and it continued to apply in Finland when it became an independent nation in 1919. Once enacted and comprehensively amended, though, the FOIA became a model for other nations of the world as they embraced its underlying democratic principles and recognized its strength as an anti-corruption measure. See, e.g., "OIP Gives FOIA Implementation Advice to Other Nations" (Dec. 12, 2002).

Today, more than ninety-five nations of the world have FOIA-like laws, in addition to several international governing bodies (including the World Bank), with dozens more nations now poised to join the international transparency community. And as the Obama Administration has replaced the Bush Administration, the United States "should be able to return to its position of leadership in the worldwide community of nations that care about best enacting or best implementing" their transparency laws. A Freedom of Information Story: Secrecy Gives Way to Transparency (July 8, 2009); see also, e.g., "Restoring U.S. Leadership in International Transparency" (CGS's Second Annual International Right-to-Know Day Celebration, Sept. 29, 2008). Indeed, President Obama himself has taken great strides toward the promotion of transparency worldwide through the Open Government Partnership launched in September 2011. Details and up-to-date status information are below.

International Right-to-Know Day

In the United States, "Freedom of Information Day" is celebrated each year on March 16, the birthday of James Madison. Since 2002, the international transparency community has likewise celebrated annual "International Right-to-Know Day" on September 28, with similar programs, Web site postings, articles, and activities. In 2007, CGS conducted the first-ever event held to commemorate this day in the United States, which was held at the Washington College of Law and included participants in London, Paris, and Wellington, New Zealand. In 2008, CGS's Second Annual International Right-to-Know Day Celebration was an expanded, day-long program that featured nine speakers who surveyed the state of transparency worldwide, and CGS also prepared the only compilation of all such recognition of International Right-to-Know Day worldwide.

In 2009, CGS's Third Annual International Right-to-Know Day Celebration featured participation by the host of the 6th International Conference of Information Commissioners (ICIC) directly from the ICIC proceedings taking place simultaneously in Oslo, Norway, marking the first time that International Right-to-Know Day was celebrated through such an international exchange. And then in 2010, for its Fourth Annual International Right-to-Know Day Celebration, CGS built upon this by conducting a combination video- and audio-link session with representatives of the Freedom of Information Centre in Dundee, Scotland, as well as by focusing on the recently adopted transparency regime of the World Bank in a session featuring World Bank General Counsel Anne-Marie Leroy. South Africa was the focus of the program conducted in 2011.

In 2012, celebrating the 10th anniversary of International Right to Know Day, CGS undertook a live "split screen" video link with IRTKD celebrants in two cities of Europe, Madrid and Brussels; focused on the transparency of international governing bodies (e.g., the European Union in Brussels); and reviewed the first year's accomplishments of the U.S.-inspired Open Government Partnership "OGP"). And in 2013, CGS's Seventh Annual International Right-to-Know Day Celebration featured an up-to-date session on the Open Government Partnership and focused on recent FOIA-implementation activities in Nigeria and the Ukraine. Details and up-to-date status information are below.

FOIA Executive Order (Bush Administration)

In December 2005, an unprecedented presidential executive order was issued regarding the Freedom of Information Act. Entitled "Improving Agency Disclosure of Information," Executive Order 13,392 called upon all federal agencies to improve their handling of FOIA requests in multiple ways, including though the appointment of a "Chief FOIA Officer" and the development of a "FOIA Improvement Plan" at each agency, and to regularly report on their progress through the Department of Justice. According to multiple reports, including by the Government Accountability Office, the promise of this Executive Order's strong initial governmentwide implementation ultimately was not met. Details and up-to-date status information are below.

OBAMA ADMINISTRATION SECRECY/TRANSPARENCY SCORECARD

On January 20, 2009, the Administration of President Barack Obama began to keep his presidential campaign commitment to create "the most transparent administration in history," something that would stand in stark contrast to the preceding Administration of George W. Bush. See, e.g., "Tell Us More," Legal Times (Dec. 8, 2008). This required prompt and palpable change in a range of subject areas -- including Freedom of Information Act policy and implementation; the use of the state secrets privilege; national security classification; the proliferation of "pseudosecrecy"; and the use of advanced technologies to foster greater transparency and information dissemination in myriad ways, under the rubric of what has been called "E-Government." See, e.g., The Nature of Government Secrecy, 26 Gov't Info. Quarterly 305 (2009). Despite getting off to a stunningly positive start, however, the Obama Administration encountered surprising difficulty in meeting the commensurately high expectations of the openness-in-government community, as it badly stumbled in several key respects and struggled with the practicalities of bringing about change -- all of which has been the cause of considerable concern. See, e.g., Sunshine Not So Bright: FOIA Implementation Lags Behind, 34 Admin. & Reg. Law News 5 (Summer 2009). The detailed assessments below, undertaken by CGS for the Obama Administration's first two years, are indicative of what remains to be done during its remaining years. See also "Transparency in the Obama Administration -- A Second-Year Assessment."

In time, however, it can be expected that the Obama Administration will succeed in tipping the balance from secrecy to transparency -- either despite or because of the overwhelming reliance that it initially has placed on technological advances over the timely implementation of substantive policy changes -- thereby delivering on the strong promise for open government that it holds.

Transparency

  1. January 20 -- Inaugural Address ("[we will] do our business in the light of day")
  2. January 21 -- Presidential Memorandum on "Transparency and Open Government" issued, calling for development of "recommendations for an Open Government Directive," but its May 21 deadline later falls by wayside
  3. January 21 -- Presidential Memorandum on "Freedom of Information Act" issued
  4. January 21 -- Signing Ceremony ("For a long time now, there's been too much secrecy in this city.")
  5. January 21 -- White House Press Release ("the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive [sic] within 120 days")
  6. February 9 -- Justice Department announces commencement of state secrets privilege review, but on same day pointedly continues advocacy of far-reaching Bush Administration position before Ninth Circuit in Mohamed v. Jeppesen Dataplan
  7. March 19 -- Holder FOIA Memorandum issued very quickly, but contains many deficiencies
  8. April 16 -- Four OLC memoranda on torture disclosed, but others remain withheld
  9. April 24 -- White House Press Secretary Robert Gibbs announces that government will not appeal Second Circuit ruling in ACLU litigation requiring disclosure of photos of alleged abuse of military detainees abroad, but President Obama subsequently reverses the decision
  10. April 27 -- Report issued by Liberty and National Security Project of Brennan Center for Justice at New York University School of Law praises Holder FOIA Memorandum as something that "could lead to a significant increase in government transparency," but stresses that "much depends on [its] faithful implementation . . . [t]o date, [it has] led to mixed results in pending FOIA cases."
  11. April 29 -- Presidential Press Conference includes rare statement by President Obama on state secrets privilege (asking for patience so that "we . . . have the time to effectively think through, what exactly should an overarching reform of that doctrine take")
  12. May 21 -- White House Open Government Initiative Web site established, but promised issuance of Open Government Directive (or at least development of recommendations for same) is greatly delayed
  13. May 21 -- Formal "Remarks by the President on National Security" include statement on state secrets privilege that "my administration is nearing completion of a thorough review of this practice," but White House then falls silent on the subject
  14. May 27 -- Presidential Memorandum on Classified Information and Controlled Unclassified Information (pseudosecrecy) issued, calling for action in each subject area within 90 days (i.e., by August 25), but action kept obscured from public view
  15. June 17 -- Statement made by Attorney General Eric H. Holder about completion of Justice Department's state secrets privilege review ("I think we will make [it] public within days"), but issuance is delayed (reportedly held up by White House) for period of several months
  16. August 24 -- CIA Inspector General report on torture released with fewer redactions, but only after release deadline is extended several times
  17. Late in August -- Justice Department publishes updated edition of "Justice Department Guide to the Freedom of Information Act," but does not include extensive guidance on making of discretionary disclosures under Exemption 5, inter alia, developed and used for implementation of identical "foreseeable harm" standard in Clinton Administration
  18. September 4 -- White House announces new policy of disclosure of names of White House visitors, a step described by Columbia Journalism Review as "a truly stunning conclusion to a long series of lawsuits" and by White House as "historic" and "groundbreaking," but more than a month later DHS still acts otherwise
  19. September 8 -- Opening of Office of Government Information Services (OGIS) at National Archives and Records Administration (led by Founding Director Miriam M. Nisbet, former Deputy Director of OIP), but long after required by statute
  20. September 9 -- White House affirmatively discloses information on issuance to executive branch officials of ethics waivers, prompting POGO Executive Director Danielle Brian to observe: "This is a big step in the right direction toward open government [that] gives a taste of transparency and we are thirsty for more."
  21. September 18 -- Justice Department releases OLC opinions dealing with privacy implications of "Einstein 2" government surveillance program for monitoring federal Internet traffic for cybersecurity purposes, but without explanation of why the two opinions (dated Jan. 29 and Aug. 14, 2009) were not released earlier
  22. September 23 -- Justice Department finally issues AG memorandum entitled "Policies and Procedures Governing Invocation of the State Secrets Privilege," consisting largely of procedural reforms, but among other shortcomings does not release results of state secrets litigation case review begun on Feb. 9 and announces that new policy, effective as of Oct. 1, 2009, will not necessarily apply to pending litigation cases (e.g., Jeppesen and Jewel)
  23. September 30 -- Associate Attorney General testifies on FOIA implementation before Senate Judiciary Committee, together with director of NARA's newly established Office of Government Information Services, but in response to questioning indicates that Justice Department is widely applying Holder FOIA Memorandum to pending cases in litigation, in spite of all evidence to contrary
  24. October 5 -- Obama Administration officials describe features of Open Government Directive, but speak of it as something still "weeks away," and to be issued without further public review or input
  25. October 23 -- United States Postal Regulatory Commission announces that it has become "the first Federal agency to adopt new Freedom of Information Act [regulations] that specifically respond to the President's call for a presumption of openness and disclosure for all decisions involving FOIA" (emphasis in original), but . . . see the underscored language
  26. October 30 -- Issuance of "Statement of Attorney General Eric Holder on Assertion of the State Secrets Privilege in Shubert V. [sic] Obama," but still without even any mention of results of Justice Department's pending (i.e., since Feb. 9, 2009) state secrets litigation case review
  27. October 30 -- White House announces "a voluntary disclosure policy governing [sic] White House visitor access records," in settlement of FOIA lawsuits brought by Citizens for Responsibility and Ethics in Washington, but it (a) applies only to records "that are 90 to 120 days old" (voluntarily denominated a "short time lag"), (b) does not apply to "records created between January 20 and September 15, 2009," and (c) contemplates that FOIA requests may be made in addition to such voluntary disclosure "but only if the requests are [inter alia] narrow"
  28. November 16 -- Going further than any president has ever gone by far, President Obama tells a town hall audience in Shanghai, China that the "freedoms . . . of access to information and political participation -- we believe are universal rights"
  29. November 18 -- Justice Department publicly assures that it intends to invoke state secrets privilege "only to the minimum extent necessary," going further than language of its Sept. 23 policy statement
  30. November 18 -- At CGS's academic conference on state secrets privilege, Justice Department official responsible for completion of state secrets litigation case review promises that "you will see a public report from us [soon]"
  31. November 19 -- White House "Open Transparency Initiative" blog optimistically declares: "The Obama Administration is taking unprecedented strides toward creating the most open and accountable government in history. And in so doing, we're learning from those states and municipalities, which are undertaking exciting experiments to bring transparency, participation, and collaboration to the way they work as well."
  32. November 25 -- White House reiterates "the President's historic commitment to increasing government transparency and openness," but as "concrete" evidence claims to have "reform[ed] the government's FOIA processes" simply by issuance of Holder FOIA Memorandum
  33. December 8 -- White House (through OMB) finally issues Open Government Directive (OGD), calling for further agency action according to fixed timetables, including preparation of individual agency "Open Government Plans," reduction of "significant" FOIA backlogs, and "creat[ion of] an enabling policy framework for open government," but inexplicably speaks of agency annual FOIA reports as if they are not "disseminat[ed]" to begin with
  34. December 9 -- Members of openness-in-government community observe that Open Government Directive calls for agencies to reduce FOIA backlogs by "ten percent each year," but that by its terms this applies to agencies with "significant" backlogs, a term that is undefined
  35. December 9 -- Justice Department announces its own "initiative in response to the Open Government Directive issued by the White House," as a "release of 20 distinct data sets," but it consists of nothing more than re-posting of existing annual FOIA reports in "machine-readable format"
  36. December 10 -- In furtherance of its Open Government Directive "annual FOIA report initiative," Justice Department asks agencies to post their reports "in Excel or other machine-readable format," but a week later "advise[s] that the preferred format" actually is "XML or CSV"
  37. December 15 -- Obama Administration releases "pseudosecrecy" recommendations that were prepared by task force in August (pursuant to deadline established in May), but takes no further action
  38. December 29 -- President Obama issues new executive order on national security classification (E.O. 13,526), establishing National Declassification Center, among other improvements addressed also in companion implementation memorandum, but with lengthy extension of automatic declassification deadlines
  39. January 6, 2010 -- White House establishes Open Government Working Group of senior officials, including Associate Attorney General, to "focus[] on transparency, accountability, participation, and collaboration"
  40. January 11 -- Obama Administration "Report Card" issued by Common Cause, Democracy 21, League of Women Voters, and U.S. PIRG awards grades that include "Open Government -- A" despite identifying transparency "shortcomings"
  41. January 11 -- White House stresses that above "Report Card" reflects that "[t]he President's open government initiatives are 'unprecedented' and 'go well beyond any efforts undertaken by previous administrations,'" and then concludes: "There is of course much work yet to be done -- and we will continue working for real change in 2010 and beyond to make government truly accessible and accountable. We welcome the participation and collaboration of the American people in that vital work."
  42. January 18 -- Washington Post editorializes strongly in favor of President Obama's issuance of E.O. 13,526, observing that it contains many elements regarding both classification and declassification that improve the "tug of war between protecting national security and the public's right to know"
  43. January 18 -- Columbia Journalism Review's January/February magazine gives highest "report card" grade to "White House visitor records," but cautions "don't buy the 'discretionary' bit"
  44. January 20 -- At CGS's First Annual FOIA Community Conference, "Transparency in the Obama Administration -- A First-Year Assessment," Obama Administration representatives make very positive impression by, inter alia, expressing receptivity to expanding Open Government Initiative's progress-measurement "Dashboard" to include the FOIA: "We definitely want to make it easy for every single American to take a quick look and to know whether or not we're delivering on our promises, and we want to make it equally easy for agencies to know whether or not they're shining alongside their peers."
  45. January 20 -- On panel devoted to OGIS at CGS's Obama Administration transparency conference, OGIS's director makes exceptionally strong impression in discussing OGIS's new "mediation services," in describing its separate "ombudsman" role as "very clearly intended by Congress," in emphasizing its interest in "collaboration with the public," in announcing its aim "to acquire an electronic case-tracking system that would be . . . a model for other agencies," in stating its intention to be "a facilitator of the whole [FOIA] process," and by assuring that "we would like to think we are a resource for all [FOIA] problems of all kinds"
  46. January 21 -- Justice Department finally updates its "FOIA Reference Guide" for first time since May 2006, but neglects to incorporate new presidential "presumption of disclosure" policy, new Attorney General "foreseeable harm" policy, and several intervening procedural changes made by 2007 FOIA Amendments
  47. January 21 -- NSC circulates copy of new "National Security Classification" section of CGS Web site, as "marvelous reference tool," within EOP and throughout intelligence community
  48. January 22 -- Justice Department announces "compliance with the Open Government Directive" through "the online publication of three high-value sets of data . . . not previously available online," consisting of "statistics on crime victimizations" compiled by its Bureau of Justice Statistics, "certain final reports filed by trustees after a Chapter 7 case with assets is closed," and "three new [Civil Division Radiation Exposure Compensation Program] reports not currently publicly available on line"
  49. January 22 -- White House says first Open Government Directive deadline is "met by agencies with "online treasure trove of information" posted to Data.gov
  50. January 23 -- White House issues Saturday afternoon post to report on "a wide array of new, high-value datasets that federal agencies have uploaded pursuant to the Open Government Directive"
  51. January 25 -- Sunlight Foundation finds "hundreds" of "high-value data sets" posted under Open Government Directive, but also finds that they "consist, overwhelmingly, of information that's already been released elsewhere"
  52. January 26 -- Agencies struggle to release "raw datasets" in "readily accessible" format, but Sunlight Foundation criticizes use of "bad XML" and analyzes them as follows: "After a lot of toying with the information released on data.gov, it doesn't seem that the raw datasets provide much use for regular people."
  53. January 27 -- White House acts promptly to rebut criticism of new FOIA policy implementation, but it does so by inexplicably claiming that the Justice Department "granted 13 percent more FOIA requests in part in 2009 than it did in the last year" and pointing only to disclosure of OLC memos, flawed White House visitor logs policy, and release of "data about birds endangering planes"
  54. January 28 -- White House special counsel for open government speaks openly and candidly at OMB Watch's Webcast entitled "Policymaking for Open Government: An Assessment of the Obama Administration's First-Year Progress," stressing that there is "a vast array of concrete steps, actions, and commitments that have been taken to begin the process," though on the FOIA "there is a limited amount of government bandwidth" and "it takes a long time to turn the battleship"
  55. January 29 -- Federal News Radio reports that E.O. 13,526 "breaks new ground in declassification," based upon presentation of "all-star" expert panel at CGS's "Transparency in the Obama Administration -- A First-Year Assessment" program
  56. February 1 -- Building upon session at CGS's Obama Administration transparency conference, OGIS issues up-to-date governmentwide FOIA policy guidance on implementation of FOIA aspects of Open Government Directive (i.e., "issues that are relevant to the [FOIA] community"), advising on how agencies "should . . . actively collaborate . . . to create a culture of open government," announcing that "OGIS plans to publish best practices on how agencies can reduce a backlog" by "at least 10 percent each year," further explaining its mission in relation to its participation in previous closed-door public liaison session with the Justice Department, and emphasizing that "[q]uestions relating to the FOIA can be directed to OGIS"
  57. February 3 -- At town hall meeting in Nashua, NH, President Obama tells audience that "[t]his is the first White House ever where you know every single person who visits the White House . . . anybody who comes to visit the White House, you know who it is," but this remains untrue in multiple respects
  58. February 6 -- In implementation of Open Government Directive, agencies launch open government pages on their Web sites on widespread basis, but according to OMB Watch assessment aimed to be "more expansive then the administration's grading through the White House's" own "Open Government Dashboard," the "bottom five laggards" include both OMB and Justice Department
  59. February 9 -- Open Government Dashboard is successfully launched despite federal government snowstorm closure, but is immediately criticized by Sunlight Foundation as needing improvement for measuring FOIA backlogs, among other purposes: "As it stands right now, it's not much of an enforcement tool."
  60. February 10 -- Under heading of "An Avalanche of Open Government Websites," Project on Government Oversight enthusiastically blogs about agencies successfully meeting this second deadline of Open Government Directive, despite "the second major snowstorm to hit the District of Columbia this season," but expresses disappointment as follows: "POGO was hoping that each agency would take this chance to shed light on the decision-making behind the release of three 'high value data sets' back on January 22."
  61. February 10 -- Nextgov reports that "the White House has anticipated some of the costs [of implementing the OGD] in its fiscal 2011 budget," but notes that as to FOIA backlog reduction it is based on premise that "if disclosure becomes the default in agencies, that would cut administrative costs associated with processing FOIA requests"
  62. March 4 -- Justice Department schedules public "Celebration of the First Anniversary of the Attorney General's FOIA Guidelines," but continues to emphasize that Holder FOIA Memorandum "directed agencies to make partial disclosures of records whenever full releases are not possible" despite fact that Congress directed that decades ago as part of 1974 FOIA Amendments.
  63. March 8 -- OMB meets Open Government Directive deadline by issuing highly detailed "Guidance on the Use of Challenges and Prizes to Promote Open Government," but does so by specifying nothing about open government in particular and demurring that "the Administration will make available a web-based platform for prizes and challenges within 120 days"
  64. March 15 -- AG Holder speaks openly about transparency implementation at Justice Department, followed by multiple White House statements stressing that agencies should "redouble the[ir] efforts" to achieve new policy compliance.
  65. March 16 -- White House "transparency czar" Norman L. Eisen makes himself freely available at CGS's Third Annual Freedom of Information Day Celebration, as well as at other "Sunshine Week" events, to discuss challenges of "turning the battleship around" on actual implementation of new FOIA policy.
  66. April 1 -- White House "transparency czar" Norm Eisen clarifies that what he meant to say when concluding his luncheon speech at CGS's FOI Day program on March 16 was "Czech, please!"
  67. April 7 -- Agencies further implement OGD with widespread development and posting of "Open Government Plans," but audit conducted by Open.The.Government.gov rates "the weakest agency plans" as those at Justice Department, Energy Department, and OMB
  68. April 7 -- Justice Department Open Government Plan states that "[e]ach month, DOJ will post the daily calendar of the Attorney General so that his meetings and activities will be readily accessible by the public, but without indicating whether this will be the Attorney General's sole calendar, which would be a marked departure from Attorney General's Office practice in the past
  69. April 22 -- Solicitor General files pro-disclosure certiorari petition asking Supreme Court to reverse Third Circuit's "corporate privacy" decision in AT&T v. FCC
  70. June 1 -- Office of Government Information Services (OGIS) graphically posts statistics showing that it already has closed 66 cases, with 182 additional ones pending, since commencing operations in Sept. 2009
  71. June 18 -- OGIS posts Case Log showing 30 cases received in CY 09 and receipt of cases at rate of 500 per year thus far in CY 10
  72. June 25 -- Justice Department issues "Open Government Plan" that for first time speaks of updating its FOIA regulations in wake of 2007 FOIA Amendments, but merely states that it "plans to review" them for "initiating" formal process within several months and is entirely silent about longstanding need for other agencies to do likewise
  73. July 5 -- White House finally begins intra-governmental "clearance process" for draft executive order on "Controlled Unclassified Information," but it effectively bypasses public input stage and draft glaringly fails to define "CUI"
  74. July 21 -- Under heading of "Federal Agencies Bolster Transparency Plans," Pro Publica reports that OMB "bumped up its score" on updated audit of its Open Government Plan after initially receiving "failing grade" and that Justice Department likewise improved by "tak[ing] advantage of . . . constructive criticism to improve their plan"
  75. August 12 -- White House releases lengthy list of transparency "accomplishment highlights," but lists only one pertaining to FOIA policy implementation, one merely scheduled for completion in December
  76. September 23 -- President Obama takes unprecedented step toward restoring U.S. leadership in promotion of international transparency by forcefully stating to U.N. General Assembly that "when we gather back here next year, we should bring specific commitments to promote transparency; to fight corruption; to energize civic engagement; to leverage new technologies so that we strengthen the foundations of freedom in our own countries, while living up to the ideals that can light the world."
  77. October 20 -- OGIS releases report showing considerable success and progress during its first year, but Archivist of the United States emphasizes that OGIS needs additional resources "to match" the magnitude of its responsibilities.
  78. October 21 -- Obama Administration indicates that "pseudosecrecy" issue will be addressed through issuance of executive order on "Controlled Unclassified Information" imminently, but that it will leave very definition of CUI (inter alia) entirely open, to be handled if possible at level of agency implementation.
  79. November 3 -- At press conference, President Obama goes out of his way to say: "I think the American people want to see more transparency, more openness."
  80. November 4 -- White House takes long-awaited "pseudosecrecy" step in form of executive order, but most glaringly elides defining new "Controlled Unclassified Information (CUI)" label.
  81. November 7 -- President Obama takes significant further strides to promote international transparency during his trip to India, including through announcement of "U.S.-India Partnership on Open Government."
  82. January 18, 2011-- White House issues transparency-related executive order entitled "Improving Regulation and Regulatory Review."
  83. January 20, 2011-- White House, OMB, and ISOO officials speak candidly about implementation at CGS's "Transparency in the Obama Administration - A Second-Year Assessment" program.

Summary Assessments/Grades (2009-2011)

FOIA Policy

A stunning, totally unprecedented "Day One" start; principles and exhortations that met even exceedingly high expectations; high-level attention that calls for commensurate levels of implementation; addressed belatedly but only somewhat less well in Open Government Directive through requirement that agencies annually reduce by 10% "any . . . significant pending backlog of outstanding Freedom of Information requests." Grade: A+

FOIA Policy Implementation

Exceptionally quick issuance of AG FOIA Memorandum, but unfortunately quick to a fault; reinstatement of AG Reno "foreseeable harm" standard with twin emphasis on discretionary disclosure as "new" FOIA policy; disappointing failure of Holder FOIA Memorandum to address backlogs, need for revision of agency FOIA regulations, and continued need for proper implementation of 2007 FOIA amendments; use of recycled "administrative hurdles" term and inapt focus on "partial disclosure"; inexplicable refusal to apply policy to all pending cases; missed opportunities to foster policy governmentwide through ongoing litigation review and use of existing Reno policy-dissemination means; limited governmentwide guidance and policy dissemination, including updating of "FOIA Guide" without utilization of Clinton-era guidance on discretionary disclosure, and glaring failure for more than 3 1/2 years to update DOJ's own model "FOIA Reference Guide" from May 2006; relatively little appreciable evidence of increased FOIA disclosure; disappointing maintenance of Bush Administration policy positions on OA status and Cheney FBI records; embarrassing 180-degree turn in litigation on detainee abuse photographs; continued maintenance of extreme positions in litigation; limited oversight testimony before Senate Judiciary Committee (SJC) due to questions about litigation implementation; highly questionable testimony before House subcommittee on measurable impact of Obama/Holder on both backlog reduction and information disclosure in FY '09 annual FOIA report statistics, leading to Holder difficulty before SJC in April 2010 appearance; Act's fundamental implementation for Secret Service records of White House visitors purported to give way to White House policy of "voluntary" disclosure of such records, under heading of "[t]ransparency like you've never seen before," leaving large "visitor log" credibility issue due to continued White House refusal to identify particular records withheld, as if they were beyond FOIA's reach. Grade: D

State Secrets Privilege

Surprisingly strong and consistent continuation of Bush Administration positions in litigation, even in most extreme incarnations, causing great concern; positive step in undertaking comprehensive reviews both of doctrine and of pending cases early on (Feb. 9, 2009), but viewed as none-too-soon step in light of perceived Bush Administration abuses; series of mixed messages from President Obama, AG Holder, and White House afterward regarding timing of new policy issuance; no announcement of any review outcome more than seven months after commencement and several months after AG Holder prediction of issuance "within days"; procedural reforms and substantive standard of "significant harm" established late in September, effective as of Oct. 1, 2009, without applicability to pending litigation cases such as Mohamed v. Jeppesen Dataplan (though government position upheld 6-5 there by en banc 9th Circuit) results of pending case reviews still not released more than a year after commencement; at CGS state secrets conference in Nov. 2009, Justice Department officials speak openly about processes of policy development and litigation case review, promising further results, but promised case-review report glaringly still has never been issued. Grade: D+

National Security Classification

Quick announcement (on May 27, 2009) of Administration intent to revise or replace existing EO, much sooner than in previous administrations; laudatory 90-day timetable for first stage of review; remarkably open process for public participation in initial review process, both through Web-based forum and public outreach by ISOO; then inexplicable and disappointing refusal of formal request for participation to include review of "actual language" drafted; initial 90-day deadline for inter-agency review process not publicly met, as inter-agency disagreements reportedly cause months-long delays; E.O. 13,526 issued within first year, as full replacement EO with companion implementing memorandum, and with strong emphasis on declassification through national declassification center, among other improvements, but with lengthy extension of automatic declassification deadlines; ISOO and new National Declassification Center nevertheless undertake strong initial efforts toward full and effective implementation, engendering strong public confidence. Grade: A-

Pseudosecrecy

Quick announcement of Administration intent to tackle difficult subject (on May 27, 2009), but only commensurate with need to do so given status quo left by Bush Administration; confusing continuation for time being of flawed "Controlled Unclassified Information (CUI)" concept under existing Bush Administration policy, with inadequate recognition of confusion existing governmentwide; externally welcome establishment of "CUI Office" within NARA; only limited public participation in, or awareness of, substance of ongoing policy-development processes; recommendatio