Transparency is the best of disinfectants

President Barack Obama hit the ground running on his first full day in office, issuing two memoranda ordering government openness and an executive order removing some obstacles to accessing the records of former presidents.

His memo ordering heads of agencies to make openness the default setting when responding to requests for documents under the Freedom of Information Act even uses a quote I've leaned on a number of times over the years, the one from Justice Louis Brandeis who wrote that "sunlight is said to be the best of disinfectants."

I take slight exception to a phrase in which Obama says "accountability is in the interest of the government and the citizenry alike." No, the citizens are the government. Some of those citizens get to exercise the responsibilities and power of government, so long as they behave and the other citizens can see whether they are behaving.

The memo's language is clear and unambiguous in its intent and worth quoting at length.

"The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," the FOIA memo states. "Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. 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. The presumption of disclosure should be applied to all decisions involving FOIA."

A second memo under the heading "Transparency and Open Government" continues in this vein.

"My Administration," the new president states, "will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public. Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public. ...

"Government should be participatory. Public engagement enhances the Government's effectiveness and improves the quality of its decisions."

These memos reverse what has been called the Ashcroft Doctrine, under which President Bush's attorney general, John Ashcroft, told administration executives to search all the FOIA exemptions before releasing requested records. Most interpreted that as making the default setting confidentiality.

In fact, that is precisely what Caroline Fredrickson, director of the ACLU Washington Legislative Office, said.

"This memorandum reverses the Ashcroft Doctrine put in place by the Bush administration instructing agencies to withhold information whenever there is a 'sound legal basis,' " Fredrickson stated. "It restores the presumption of disclosure and demands that agencies take affirmative steps to make information public rather than waiting for specific requests. This approach to FOIA is just the antidote we need to remedy the kind of opaque governing we saw during the last eight years. Sunshine is, indeed, the best of disinfectants and we have great hope for a new and untainted era of government."

Back in 2007, the Coalition of Journalists for Open Government found that despite a Bush administration executive order mandating better service for FOIA requests, the response had worsened. The backlog was worse, the wait was longer, more requests were being denied and the cost was climbing.

Ellen Miller of the Sunlight Foundation is being quoted as saying she is pleased openness is such a priority in the Obama administration, but, like me, she cautions, "The devil is in the details."

The guy holding the reins has ordered the mules to giddyap. We'll see whether he'll have to use the whip.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/Mitchell.