Let The Sun Shine In: Release Blagojevich Records

President-Elect Barack Obama campaigned on a pledge to make government more transparent and to make the White House the "people's house." Yet, the Obama transition team is missing a golden opportunity to allow that transparency to extend to the President-Elect's transition team.

The transition team is refusing to allow the release of any records or documents related to contact between its office and Governor Blagojevich and his staff, citing that such records are not obligated to be disclosed under the law. While that is legally correct, President- Elect Obama is missing the opportunity to champion a reform of the misguided legal standards which do not compel disclosure of transition team records and allow Presidential transition teams to operate in virtual secrecy. Such a move would be as much about breaking with the secretive disclosure practices of the Bush Administration as it would be about helping to restore faith in government which is at an all time low. President-Elect Obama is precisely the right person who can once and for all argue that the way Presidential transition teams operate needs to change.

Presidential transition teams fall within an anomaly in federal government. A transition team is a private not-for-profit organization yet it receives taxpayer funding (in the case of the Obama transition team over $5 million to date) and is given offices in Washington. Yet, in what amounts to a glaring loophole in public disclosure law, transition team records are not subject to disclosure by either of the two prevailing disclosure laws that cover all government agencies in the Executive branch-The Freedom of Information Act or the Presidential Records Act. Accordingly, transition teams can act behind a veil of secrecy.

The Presidential Transition Act was passed in 1963 after it was discovered that the 1952-1953 Presidential transition cost over $200,000 and that the 1960-1961 transition over $360,000, each of which was paid for by the respective political party. The Act authorizes the General Services Administration to provide office space and funding for staff and administrative costs. The task of a transition team is enormous. The transition team hires staff (currently the Obama transition team has a staff of over 450 people), ultimately makes about 4,000 appointments (25% of which must be confirmed by the Senate), initiates policy plans, sets priorities, holds meetings with various interest groups and, in short, fulfills many of the functions that a government agency would do.

The Presidential Records Act mandates that the President's records be maintained and turned over to the National Archives after the President leaves office, but it is not applicable to transition teams as the President-elect is not in office yet. Similarly, a legal memorandum from the Reagan Department of Justice concluded that The Freedom of Information Act (which requires disclosure by federal agencies of documents requested by the press or individuals) also does not apply to transition teams, because the transition team is a private organization and not an agency in the Executive branch. In the 1988 memorandum, the Department of Justice noted that the test for whether an entity falls under the Freedom of Information Act, is whether it is "controlled by the Executive branch" and not its mere funding by taxpayer dollars.

Particularly in the dire economic straights our country faces, and with new reports surfacing that there has been absolutely no oversight or standards imposed on the banks who are receiving federal bailout funds, it is more important than ever that the policies and practices of the President- Elect's transition team are brought to light. Given the enormity of the role of transition teams, they should be subject to the same level of accountability and transparency as any other part of government. As the Obama transition team is reported to be negotiating and engaging in substantive policy decisions with the Treasury Department about the bailout and its administration, it is critical that such decisions by the transition team be subject to the same type of scrutiny as the Office of the President in to order to restore confidence and provide real accountability to the American public.

The change that this country voted for is, in large part, dependent on a break with the past and with restoring honest and open lines of communication between the President and the American people. It is unfortunate that the Obama transition team is resorting to the old arguments of the past in seeking to keep the Blagojevich records private. While the release of the records would most likely confirm that there was no untoward behavior on the part of the President-Elect's team, the resistance to the release and the failure to seek to champion a change to the secretive practice of transition teams can only help to further the scrutiny on the Blagojevich matter and make it a political distraction.

Interestingly, earlier this month, the transition team introduced a new website, Your Seat at the Table, to track the many interest groups that were meeting with the transition team and to list the subjects discussed. This first step towards transparency is important but it is unfortunately contradicted by the transition team's unwillingness to release the full Blagojevich records. Now is the time for the Obama transition team to truly let the "sun shine in" and quiet the noise that has only served to distract the team from its important work ahead. The transition team has a unique opportunity that it should quickly capitalize on to set the example for what transparent government truly can be.

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