President Biden: Don’t Let the Clock Run Out on Critical Transparency Fixes

President Biden signed an executive order on ethics commitments on his first day in office, and followed this positive step up with a National Security Memo stressing the importance of transparency to national security. The memo aptly states, “The revitalization of our national security and foreign policy workforce requires a recommitment to the highest standards of transparency.” 

“Yet,” as the Washington Post’s Editorial Board recently noted, “there’s far more to be done” to restore government accountability. 

While the President has made good on some open government commitments, like resuming posting White House visitor logs, he has not gone so far as to make the logs for virtual meetings public, a sizable transparency hole. And while the President has ordered a declassification review of 9/11-related documents, a declassification review is not synonymous with meaningful declassification, and can result in lowest-common-denominator declassifications and agencies falling back on their usual exemptions without consistent White House attention.  

The Post highlights the Accountability 2021 report, which the National Security Archive contributed to, to assess the critical transparency gaps that still need to be filled. The report, which was first published last year, outlines specific meaningful steps the administration should take to strengthen the Freedom of Information Act, reduce government secrecy, empower inspectors general, and protect whistleblowers, among other important issues. The Post unequivocally states that, eight months into President Biden’s administration, much more needs to be done to bolster all these areas. “The White House can best demonstrate its belief in the importance of raised expectations — to the people and to the rest of the world — by applying them to itself.”

One easy way for the Biden administration to see what most needs fixing is by looking at the Accountability 2021 Progress Report. Out of the 216 recommendations made in the report, only 16 have been fully implemented, and only another 13 have been partially implemented. Perhaps most alarmingly, not a single one of the open government recommendations has been fully fulfilled. The President, for example, has not yet directed Attorney General Merrick Garland to issue a memorandum on FOIA; instead the AG has only committed to a generous application of the FOIA. Attorney General Garland has also not yet directed the Justice Department’s Office of Legal Counsel to release all final legal opinions to the public, nor has he committed to conducting a litigation review of all pending FOIA cases; the last review was conducted in 1993 by Attorney General Janet Reno, and led to “greater information disclosure and a reduction of records contested in FOIA litigation.” Another one is past-due.

President Biden saw first-hand how much an administration can do to bolster transparency in a short period of time while serving as Vice President during the Obama administration. On his first full day in office, President Barack Obama signed an executive order and two presidential memoranda heralding what he called a “new era of openness.” Obama’s Presidential Memorandum on the Freedom of Information Act explicitly established a presumption of disclosure for information requested under FOIA, stating, “every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.” President Obama also issued an executive order reversing changes made by President George W. Bush to the Presidential Records Act (PRA), stating he would hold himself and his own records “to a new standard of openness”, and issued a Presidential Memorandum on Transparency and Open Government which recognizes that “[o]penness will strengthen our democracy and promote efficiency and effectiveness in Government.”

President Biden also witnessed the Obama administration’s quick-start fall victim to the dangers of not keeping the foot on the accountability gas; White House turnover combined with agency intransigence both helped dash President Obama’s goals of an “unprecedented level of openness” during his tenure. President Biden could help avoid this in his own administration by  ensuring that a robust, dedicated White House staff is consistently working towards the administration’s transparency goals. 

The clock has far-from run out. President Biden still can and should bolster transparency by addressing the recommendations in the Accountability 2021 report to the fullest extent possible. As the Post says, “the sooner the better.”