Secrecy still reigns: despite a few recent advances for open records, those who favor open government say there has been a sharp decrease in government transparency.

• Author: Swartz, Nikki
• Position: ON THE EDGE: The Use & Misuse of Information

At this writing, U.S. President George W. Bush has little more than 10 months left in office. But the effect of his decisions regarding government records may prove to be long-lasting.

According to open-government groups, the U.S. government has become more secretive over the past seven years and, unless Congress or the next president changes the current culture in Washington regarding the openness of government records, that trend may continue.

PRA Revised

In November 2001, Bush issued Executive Order 13233, giving former presidents--and, for the first time, vice presidents--and their families the authority to withhold the release of presidential records in perpetuity. The order essentially overturned the Presidential Records Act of 1978 (PRA), allowing a sitting president to block the release of a former president's records, even if that former president has approved the release. The only recourse of those who may oppose the action of a president is a lawsuit; however, even then, the president or former president can delay the release of records.

The PRA allowed former presidents to withhold records relating to their term in office up to 12 years after leaving office and granted several exceptions after that time expired for which records could continue to be withheld. When a president's term ends, the PRA gave the U.S. archivist custody of the records and ultimate authority over whether to release them.

In response to vociferous protests over Bush's order, a government watchdog group filed a lawsuit, and the House passed The Presidential Records Act Amendments of 2007 by a veto-proof margin and with the support of 104 Republicans. The legislation, which would void Bush's order and re-establish procedures to ensure the timely release of presidential records, received broad bipartisan support in the Senate and cleared the Senate Homeland Security and Government Affairs Committee by voice vote last year.

But in September 2007, it hit a roadblock--Sen. Jim Bunning (R-Ky.). Bunning objected to the bill and since has held up a vote on it. Despite requests from the media, open government groups, and historians, Bunning has refused to fully explain his opposition. However, last year the Dallas Morning News quoted him as saying, "The president ought to have the right to withhold any records he chooses" and that former presidents should have "a reasonable amount of time" to release their records.

The White House has said that if the bill does eventually pass Congress, Bush will veto it.

However, part of Bush's order has been invalidated in court. In October 2007, a federal judge ruled that the National Archives, in fact, should have the final say on when presidential papers are publicly released. In her ruling, U.S. District Judge Colleen Kollar-Kotelly invalidated the part of Executive Order 13233 that broadened former presidents' rights to indefinitely withhold or delay the release of their records.

Her ruling came in response to a lawsuit brought by government watchdog group Public Citizen soon after Bush's order was issued in 2001 on behalf of itself and several historian and press groups. The lawsuit asked the courts to strike down the executive order, but Kollar-Kotelly's ruling provided only a partial victory for the plantiff. She did not rule on the constitutionality of the order itself and, instead, focused on the provision related to former presidents.

In addition, the judge did not rule on the legality of the sections giving the family and designees of former presidents and vice presidents...