Each year, advocates of open and accountable government celebrate the birthday of former president James Madison, a founding father and advocate of open government, by hosting a week of events and increased public advocacy called Sunshine Week. In 2009, Attorney General Eric Holder released a memo during Sunshine Week regarding Freedom of Information Act (FOIA) implementation that encouraged disclosure of agency records. This year, transparency was highlighted through public events, legislative initiatives, and op-eds.

Sunshine Legislation

Several important new legislative initiatives at the federal level marked the open government week. In the Senate, Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX) reintroduced the Faster FOIA Act (S. 1111), which they first sponsored in 2005. If passed, the bill would create a congressional advisory panel to identify problems related to agency FOIA backlogs and processing delays and then recommend legislative changes to Congress, as well as advise on possible executive actions the president could take to reduce the processing time for records requests.

Another Sunshine Week bill, the Public Online Information Act (POIA) (H.R. 4858), was introduced in the House by Rep. Steve Israel (D-NY) on March 16. The bill creates a new standard in government, calling for public information to be posted online. Several transparency advocacy groups signed a joint letter calling for congressional hearings on the bill.

In addition to making most public records permanently available on the Internet, the bill would also establish an advisory board to determine best practices. However, the bill permits agencies to seek exclusions from the requirement to post public records online, should their online availability be deemed dangerous despite the records already being public under laws such as FOIA. Such exclusions would need authorization from the E-government administrator within the White House Office of Management and Budget (OMB). This is the first time the bill has been introduced.

Also in the House, a bill to reform the Federal Advisory Committee Act began to move forward. The bill to amend the act (H.R. 1320), introduced in June 2009, was expected to be considered via expedited procedures for noncontroversial bills. The bill would expand the requirement on government agencies to publicly report accounts of federal advisory committee meetings. The bill would also increase public knowledge of who the government gets advice from and the specific issues that are discussed. The legislation was pulled from the expedited track when Rep. Darrell Issa (R-CA) objected on procedural grounds to changes that were made to the bill without bringing it under a rule. Issa has asked for a committee vote on the bill before it is taken up by the full House.

During Sunshine Week, the House also passed the Plain Writing Act of 2010 (H.R. 946) and sent it to the Senate. The legislation would require agencies to use plain language in any document issued to the public other than a regulation. This bill would reduce the overly legalistic and difficult-to-understand language that is confusing to many Americans. The bill calls for agencies to submit proposals on how they intend to train employees and ensure compliance with the act and establishes a central point person in the agencies who is responsible for implementation. The bill was introduced by Rep. Bruce Braley (D-IA) on Feb. 10, 2009, and passed with strong bipartisan support on a vote of 386 to 33.

Finally, measures in the Electronic Message Preservation Act (H.R. 1387), introduced on March 9 by Rep. Paul Hodes (D-NH), would require the preservation of certain electronic records by federal agencies. Further, the National Archives and Records Administration would be required to establish standards for the management, retrieval, and preservation of agency and presidential electronic records. This bill is aimed at addressing the problem of e-records management that has plagued the executive branch for decades. The bill passed the House by voice vote on March 17 and was received by the Senate on March 18.

Sunshine Reports

The need for new legislation concerning government openness was underscored by several reports and releases that emerged during Sunshine Week. In particular, the National Security Archive released an audit report concluding that only a third of federal agencies have made significant strides toward complying with the Obama administration’s new FOIA policies. The Archive filed FOIA requests with 90 agencies requesting any records that demonstrate how the new policies are being implemented. The report noted that 38 agencies had either circulated the new FOIA guidance, launched new training efforts, or implemented concrete changes in practice. However, 35 agencies responded that they had no records about changes to their implementation of FOIA, and 17 didn’t respond or withheld their records. The report also noted that several agencies had reduced their backlogs of outstanding requests, though some agencies continue to have requests as much as two decades old. So far, only four agencies, according to the report, show both increases in releases and decreases in denials under FOIA. The Archive noted that it is "too early to render a final judgment" but that "more pressure and leadership will be necessary."

Unlike previous administrations, the Obama White House addressed Sunshine Week directly in public statements. The administration disagreed with the Archive’s findings of limited progress, contended that agencies have already made significant strides on FOIA, and noted that the most recent data support such a conclusion. In a post on the White House blog by administration counsel Norm Eisen, a brief memorandum by Chief of Staff Rahm Emanuel, and a statement by President Obama, officials lauded the successes of the administration such as releasing visitor logs and data reporting through Recovery.gov and Data.gov. Further, Eisen stated that "we believe that the first-year Chief FOIA Officer Reports that are forthcoming from the agencies will show progress on FOIA…"

The Justice Department posted these FOIA officer reports on its website on March 17. The data that is publicly available from the FOIA Annual Reports shows that while full granting of FOIA requests is down, as the Archive demonstrates, the combination of both full and partial granting of FOIA requests is on par with previous years. Further, the data from the reports also show a clear drop in agency backlogs to a level consistent with the level of backlogs that existed under the Clinton administration. These data are collected on a fiscal year basis, meaning that data collection ended September 30, 2009, roughly six months after the Obama FOIA policies were announced. Given this brief timeframe, it is surprising that the data is already showing some change.

Sunshine Events

Several open government events occurred throughout the week and focused on federal transparency.

• The Freedom Forum kicked off Sunshine Week with its 12th annual National Freedom of Information Day Conference, which explored the status of freedom of information with speakers from the administration as well as Congress.
• The OpenTheGovernment.org coalition hosted its annual Sunshine Week webcast featuring three panels on embedding transparency into government, improving the ability of citizens to request information through FOIA, and using government data in innovative ways.
• The Collaboration on Government Secrecy at American University’s Washington School of Law held a one-day conference covering a wide array of government transparency issues.
• The Sunlight Foundation launched a transparency campaign around the principle that public records should be posted online.