Presidential records legislation creates transparency, but has some loopholes


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A bill legally standardizing the disclosure presidential records unanimously passed the House on Jan. 14 to the delight of transparency organizations. However, some critics believe the act has serious loopholes, some of which could be expensive to taxpayers.

The bill would legally bind presidents to follow a disclosure procedure similar to an executive order issued by President Barack Obama, according to Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington.

The procedure requires the archivist of the United States to make nonclassified, presidential records previously unreleased available to the public within 60 days.

Former and incumbent presidents may still use executive privilege to keep the records private. However, if former presidents invoke privilege the release of the information is left to the discretion of the current president.

“[The bill] is talking about the way in which presidential privilege is asserted,” said Angela Canterbury, director of public policy at the Project on Government Oversight.

Previously, presidents could issue a new executive order to change the terms of which records are disclosed. Under the Bush administration, executive privilege was much more restrictive, according to Canterbury.

If the bill is passed, future presidents’ privilege will be relegated to the bill’s specifications.

The bill may ease the work of the National Archives as well. The new law will transfer presidential records to the Archives every 60 days, unburdening it from enormous dumps of executive material at the end of a president’s tenure, according to Weismann.

Organizations such as POGO have lauded the bill for its transparency.

“We support the bill and have supported previous versions of the bill,” Canterbury said. “Presidential records are extremely important and give us a unique look into history.”

However, the bill may not be as transparent as it sounds, according to Lisette Garcia, founder of the FOIA Resource Center.

The bill brings all executive branch private instant messaging communications within presidential privilege as long as they are eventually copied to the employee’s official electronic communications account, according to Garcia.

Meaning, the government does not have to release the chats if the proper procedure is followed.

“The upshot is that agency officials who want to shield their previously unprotected chats with White House staffers from disclosure through FOIA, need only redirect these bits of information to official channels,” Garcia said.

The Congressional Budget Office’s report states the bill would have no or negligible cost; however, Garcia says this is not so.

The federal government has no way of archiving BlackBerry messages or other instant messaging avenues, according to Garcia.

“That’s a lot of terabytes,” Garcia said. “Where will we keep them? At what cost?”

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Angela Canterbury, Anne Weismann, Congress, CREW, data analytics, FOIA Resource Center, Government IT News, Lisette Garcia, open data, open government, oversight, POGO, Regulations & Oversight, Tech, White House
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