Biden promised transparency. Has he delivered?
Anna Diakun/CNN
On President Joe Biden’s first day in office, White House press secretary Jen Psaki pledged that the administration would “bring transparency and truth back to government.” While the administration took some initial steps toward fulfilling this pledge, it has simply failed to act on a number of transparency issues. Worse, the administration seems to be embracing the opaque and undemocratic policies of its predecessors on a few other fronts.
One year into Biden’s presidency, the drive to fulfill this promise of transparency seems to have dissipated. As Biden and his advisers look to the next year, they should prioritize policies that eliminate barriers to transparency and democratic accountability, and work to strengthen those norms for administrations to come.
First, we should give credit where credit is due. In February, the administration released the US intelligence report on the murder of Jamal Khashoggi that the Trump administration had refused to disclose. In May, as promised, Biden resumed the release of White House visitor logs after former President Donald Trump abandoned that practice. (This move, however, deserves only partial credit: these logs don’t include virtual meetings or visits during Biden’s many trips home to Delaware.)And, more recently, instead of invoking executive privilege to block the release of Trump-era White House communications related to the January 6 insurrection, Biden waived privilege over the records.
The administration has also cultivated a much less hostile relationship with the press than the last administration, with more frequent press briefings and a marked change in tone (though solo press conferences with the President are infrequent). Perhaps most significantly, Attorney General Merrick Garland issued a memorandum banning the Justice Department’s use of subpoenas to seize journalists’ records during whistleblower investigations and prosecutions, subject only to limited exceptions. While the memorandum has yet to be codified in Department regulations, this policy is a commendable step.
Despite progress on these issues, fundamental problems remain, limiting what the public can learn about the government. For example, the administration has taken no apparent steps to address significant problems relating to agencies’ compliance with the Freedom of Information Act.Though the FOIA is meant to be a core pathway to transparency, long delays and high rates of withholding make getting information into the hands of the public difficult — especially if the requester is unwilling to engage in years-long litigation. In February 2021, a group of more than 40 organizations signed a letter, co-drafted by the Knight Institute, where I work, and the American Civil Liberties Union, outlining ways Biden could improve FOIA administration and encouraging him to issue a memorandum aimed at fixing some of its problems.
Although former President Barack Obama issued a similar memorandum acknowledging the importance of transparency and government accountability on his first full day in office, Biden has not acted on the invitation to bolster and improve FOIA.
The administration has also failed to end the unnecessary secrecy surrounding the final legal opinions of the Department of Justice’s Office of Legal Counsel (OLC) that bind federal agencies and officials on issues of public concern. The FOIA gives the public the right to know what the law is — and these legal opinions have the force and effect of law within the executive branch.
That’s why civil society organizations have called on the OLC to publish those opinions as a matter of course, excluding classified information or information otherwise exempt from disclosure under the FOIA. But the Biden administration has nonetheless maintained the position of previous administrations that the decision to release any particular opinion is a matter of discretion, defending its right to withhold opinions from the public in court (The Knight Institute represents Campaign for Accountability in its lawsuit against the Department of Justice).
Further, despite Biden’s “recommitment to the highest standards of transparency” when it comes to national security and foreign policy, his administration has adopted undemocratic policies of previous administrations in these areas.