Mark Tapscott, writing in dcexaminer.com, calls the Podesta memo on an open transition policy consultation process a hopeful sign of what could be a remarkable and even historic improvement in the Executive Branch's openness to public scrutiny.  On the other hand . . .

. . . there are caveats. First, presidential transitions do not always say
much about the policies a new administration will follow. Having served
on one such transition team—Reagan's at the General Services
Administration following the 1980 election and then serving as a Senior
Executive Service political appointee at another agency, the U.S.
Office of Personnel Management—I can attest that policy
recommendations from transition teams can be useful guides to what an
incoming administration will do. But perhaps more often, transition
team reports are tossed in the waste basket the first day the new
administration's permanent appointees show up for work.

Also, he notes, nothing that the transition team does—or how it does it—legally binds the ensuing White House; and even the Podesta memo itself does not purport to expose anything but meetings of three or more people and the memos delivered in the meeting—meetings of just two, or memos sent without a meeting, are not covered.

Some early indicators of how much respect and emphasis transparency policies will get in the new Obama administration, he says, are noted in an opinion piece in this week's Legal Times by Daniel J. Metcalfe, who retired last year after serving for more than 25 years as founding director of the Justice Department’s Office of Information and Privacy.  Metcalfe writes that the earliest harbinger could be a mention in the new President's inaugural address.

No, there has never been a reference to freedom of information or transparency in any president’s inaugural address, but that ought to change now.  It would not take much—just a clause, a sentence, or two—for President Obama to make crystal clear at the outset that a new era of government openness has begun:
    “And it is time for the excessive government secrecy of the past to give way to govern¬ment transparency in the future—so that all Americans can learn what their government is doing in their name and participate fully in our great democracy.  Let us shine a bright light on govern¬ment, in a variety of ways, and make this the most transparent administration in history.” Any language along these lines, spoken on Day One of the Obama administration, would go a long, long way.

Or not. Arnold Schwarzenegger, both as a candidate to replace California Governor Gray Davis in the historic recall election, and as freshly elected chief executive, made bold and unprecedented commitments to open government principles—only to ignore them since, quickly becoming no more interested in transparency than his predecessors.  The difference could be that Obama, thanks to both his own incitement and the economic calamities besetting D.C., will preside surrounded by an encampment of pan-ideological sunshine hawks such as Schwarzenegger never had to deal with. Metcalfe also recommends:

  • an early days presidential memo to all executive branch hands advising them of the Administration's bias toward transparency;
  • a guidance from the new attorney general, like the one issued by Janet Reno in the Clinton era, and reversed by her Bush Administration swuccessors, to avoid asserting exemptions from disclosure under FOIA unless the result would be "foreseeable harm"; and
  • a legislative initiative in Congress "to partner with Congress’s longtime FOIA champion, Sen. Patrick Leahy (D-Vt.), and to readily agree on a package of progressive FOIA amendments."

Tapscott faults the last point as needlessly partisan.

Leahy is indeed a long-time FOIA champion but what about Sen. John Cornyn, the Texas Republican who took up the FOIA cause when the GOP controlled Congress and did so in partnership with Leahy? Not only was Cornyn an eloquent and persistent voice on behalf of FOIA reform under the GOP majority, he was also a precedent-setting FOIA advocate as attorney general of Texas prior to being elected to the Senate.
   I have argued since long before being inducted into the Freedom of Information Act Hall of Fame in 2006 that excessive partisanship in the FOIA community since the Watergate era on behalf of Democrats has damaged the open government cause. True, Republicans should have risen above such considerations, given the importance of these issues, but the FOIA community has too often created unnecessary obstacles to genuine reform by allowing knee-jerk partisanship to color so many of its efforts and the tone and content of its communications.


Hear, hear. No party owns the First Amendment, FOIA or any other protector of freedom of expression and information. What decides one's alignment to sunshine principles is not whether one is Democrat or Republican, liberal or conservative, but rather whether one is an insider tempted to hide one's official record or intentions, or an outsider impatient to learn them.  Just as moral character is said to be shown by what we do when no one is watching, the test for political character is how an outsider behaves after winning the power to close the doors and lock the files.