Biden Presidency a New Era of Open Government?

Restoring open government should be a priority for the incoming Biden administration, argues WatchDog. Above, Joe Biden at a November appearance after being designated president-elect. Photo: @JoeBiden/Instagram. Click to enlarge.

WatchDog Opinion: Biden Presidency a New Era of Open Government?

 

EDITOR'S NOTE: This story is one in a series of special reports from SEJournal that looks ahead to key issues in the coming year. Visit the full “2021 Journalists’ Guide to Energy & Environment” special report for more.

By Joseph A. Davis

The start of a new administration is always a good time to express our aspirations for freedom of information, freedom of the press and government openness. But aspirations are not enough.

You might recall the first day of the Obama administration, when the White House issued a visionary memo to agencies on “Transparency and Open Government.” Despite serious efforts, journalists (including the Society of Environmental Journalists) ended up disappointed in the results and sometimes in conflict with press officers in many agencies. 

Lessons were learned. One of them is that even presidential leadership is not enough. Congress, the agencies and industry lobby groups also affect the infosphere — sometimes working against openness.

No, it’s not enough just to declare our desires to President Biden and demand: “Deliver.” Although many will try it. And he may yet.

 

Even journalism groups do not entirely 

agree on what the problem is or how to fix it.

 

We all know that Biden is busy with other things (pandemic, recession, world conflict, climate change, etc.)  And even journalism groups do not entirely agree on what the problem is or how to fix it. Is it Freedom of Information Act stonewalling? Paranoid state secrets? Corrupt industry cabals? Nasty, unhelpful press officers? Suppression of science?

Yes. All the above.

The thing is not to give up. Take the little victories and see if you can bank them permanently. And yes, the journalist’s job is to get the information that they don’t want to give you. Everything else is just publicity (thanks, Bill Moyers).

So, in honor of a new administration, here’s a list of 20 First Amendment actions journalism groups might ask the Biden team for (or judge them on) in order to start restoring open government.

1. Stop calling the news media the “enemy of the people.” Renormalize civility and truth. A  new code of conduct for press relations is needed (see more below), but leading by example might be better than putting it in writing.   
2. Work with Congress on legislation to outlaw assault and harassment of journalists. Direct federal law enforcement officers to avoid physical harm to journalists. 
3. Appoint people to the White House press office, including the press secretary, who at the very least adhere to truth-telling, responsiveness and openness. Restore daily briefings. Stop lying. Appoint similarly responsive, open truth-tellers to agency press offices.
4. Issue an executive order requiring agencies to adopt and publish written policies for interacting with news media, especially via press offices. See some criteria below (“Bill of Rights”). A core principle should be that federal employees are free to communicate with news media.
5. Issue an executive order directing agencies to review and revise their FOIA regulations, reversing Trump-era restrictions and restoring the FOIA Improvement Act of 2016, whose most important principle was a presumption of openness. Special attention to the United States Environmental Protection Agency and Interior Department. 
6. Appoint career chief FOIA officers with integrity at the relevant agencies. They should be career professionals rather than political appointees. Lawyers don’t help if they don’t follow the law. 
7. Clear the FOIA backlogs. Fast. The record is not good. A new round of agency FOIA reports with backlog data is due soon. Where needed, beef up staffing and budget for FOIA response.
8. Appoint the right person, preferably a career FOIA lawyer with a commitment to openness, to head the Justice Department’s Office of Information Policy (which oversees FOIA).
9. Don’t use the Office of Information and Regulatory Affairs, or OIRA, at the Office of Management and Budget, to undermine government openness. Live up to Executive Order 12866 (pdf), which requires disclosure of OIRA meetings with regulated parties.
10. Issue an executive order prohibiting use of private email for government business.
11. Support federal “shield law” legislation legalizing a strong “reporter’s privilege” to keep confidential sources confidential. The last serious effort almost made it in 2010, but lacked support from the Obama administration. Pending a shield law, re-establish the Obama Justice Department’s 2014-2015 guidelines limiting subpoenas of journalists.
12. Work with Congress and agencies to strengthen the Whistleblower Protection Act, along with related laws and directives. Most important is enforcement, which currently does not protect whistleblowers.
13. Justice Dept. should end all prosecution of journalists under the Espionage Act (may require subscription).
14. Direct agencies (including the OMB) to review and strengthen agency Scientific Integrity Policies, focusing especially on open communication and preventing political interference in science. More here.
15. Rescind the EPA “Secret Science” Rule via another rulemaking. Same with analogs and policies at other agencies.
16. Improve the effectiveness of the Office of Special Counsel and the Merit Systems Protection Board, which are supposed to oversee whistleblower protection. The MSPB has been without a quorum for virtually the entire Trump administration. 
17. Direct the General Services Administration and agencies to maximize openness of all committees subject to the Federal Advisory Committee Act, or FACA. Rescind the Trump executive order (EO 13875) arbitrarily ending FACA. Open government groups have opposed it. This includes EPA science panels.
18. Ensure federal adherence to the Government in the Sunshine Act, which, with certain exemptions, requires the public to be notified of federal meetings and for the meetings to be open to the public. Update requirements under the Sunshine Act to account for changing technology, like texting and Zoom meetings. 
19. Work with Congress to strengthen the Inspector General Act, to prevent presidential firings of IG’s who undertake politically inconvenient investigations. 
20. Work with Congress and agencies to counteract “ag-gag” laws, which criminalize undercover journalism on animal abuse. Although courts have found some state ag-gag laws unconstitutional, the USDA could restore disclosure of inspections and enforcement under the Animal Welfare Act. Congress could mitigate First Amendment harms in the Animal Enterprise Terrorism Act.

And on top of that, here are recommendations for an (updated) reporter’s Bill of Rights for press offices.

1. Prompt response to phone calls and emails. Prompt means within deadline.
2. Strong limits on “background” rules. Public information office staff response presumed on the record. Rules of attribution do not apply unless/until a reporter agrees. No limits on questions. 
3. Press officers who know what they are talking about and are able to speak on the record. Avoid vague, anonymous emails and desk statements.
4. Press conferences on the record with adequate, open questioning. Earlier notification.
5. Access to agency documents without FOIA hurdles when possible. Preemptive disclosure.
6. Fairness of access for media of different sizes, types, locations. Includes advisories.
7. Agency employees (especially scientists) should be free to talk to reporters without press office permission or minders, and without restrictions on what they can talk about.
8. Access to agency data and data tools.
9. Help with stories. The press officer’s job is not to spin or obstruct, but to guide reporters to people, phone numbers, emails, facts, reports, images, audio, video, policies, studies, memos, backgrounders and context.
10. Accuracy, honesty, openness and truth. Civility and professionalism.  

[Editor’s Note: WatchDog is an independent opinion column and does not necessarily represent the official stance of the Society of Environmental Journalists].

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column and WatchDog Alert.

---

* From the weekly news magazine SEJournal Online, Vol. 5, No. 43. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.