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    During Week 1, Obama Makes Moves to Strengthen Openness in Government

    In his first week as US president, Barack Obama has published orders that would likely increase openness and transparency in the federal government. Also, he has appointed an attorney with a privacy background to head the Justice Department’s antitrust division.

    Christine Varney has been at DC law firm Hogan and Hartson since 1997, and she leads the Internet practice group. “This practice provides full service assistance to companies doing business globally, including providing advice on antitrust, privacy, business planning and corporate governance, intellectual property, and general liability issues,” according to the Hogan and Hartson site. Before 1997, Varney was a Commissioner at the Federal Trade Commission. There, “She led the government’s effort to examine privacy issues in the information age, resulting in congressional and agency hearings, proposed industry standards, and increased government enforcement of laws protecting privacy.”

    Varney also helped to create the Network Advertising Initiative and the Online Privacy Alliance. Both organizations support industry self-regulation of customer data collection and sharing, which I don’t believe is enough to truly protect consumer privacy. (I’ve written previously about Web sites such as Facebook, Internet Service Providers, and search engines gathering personal data to create targeted advertisements.) I hope that Varney’s privacy experience will lead to stricter scrutiny and regulation of online advertising and customer data collection practices.

    Also last week, President Obama released two memoranda and one executive order concerning greater public access to government records, including presidential records.

    Obama’s memo on open government set out principles for transparency. “My Administration 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.” Obama ordered the creation (within 120 days) of an Open Government Directive “to be issued by the Director of OMB, that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum.”

    Obama’s memo on the Freedom of Information Act (FOIA) directed the Attorney General to write new guidelines to agencies on FOIA to improve government transparency, stating, “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.” Obama’s memo repudiate the guidelines Atty. Gen. John Ashcroft released in 2001. This “Ashcroft Doctrine” memorandum rescinded the one set out by former Atty. Gen. Janet Reno in 1993 (and its 1995 update). The Government Accountability Office reviewed the differences (pdf) between the Ashcroft and Reno Doctrines in 2003.

    Following the issuance of the Ashcroft memorandum, Justice changed its guidance for agencies on FOIA implementation to refer to and reflect the two primary policy changes in the memorandum. First, under the Ashcroft memorandum, agencies making decisions on discretionary disclosure are directed to carefully consider such fundamental values as national security, effective law enforcement, and personal privacy; the Reno memorandum had established an overall “presumption of disclosure” and promoted discretionary disclosures to achieve “maximum responsible disclosure.” Second, according to the Ashcroft memorandum, Justice will defend an agency’s withholding information if the agency has a “sound legal basis” for such withholding under FOIA; under the Reno policy, Justice would defend an agency’s withholding information only when the agency reasonably foresaw that disclosure would harm an interest protected by an exemption.

    Obama’s Executive Order on Presidential Records reverses his predecessor’s restrictions on access to former presidents’ documents. President Bush’s executive order allowed former presidents and vice presidents to keep documents hidden longer than the 12-year-period allowed under the Presidential Records Act. In fact, there would be no “access to any such privileged records unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order,” under Bush’s order. Under Obama’s order, former presidents can still claim records are privileged, but the final decision would be made by the Archivist of the United States, who “shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate.”

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