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It’s Not as Sunny as We’d Like

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This is “Sunshine Week” and a number of events, panels, and discussions on open government are happening in Washington, DC, and across the country. Yesterday, Project On Government Oversight Director of Public Policy Angela Canterbury testified before the House Oversight and Government Reform Committee on “Addressing Transparency in the Federal Bureaucracy: Moving Toward a More Open Government.” Chairman Darrell Issa (R-Calif.) and Ranking Member Elijah Cummings (D-Md.) led an engaging discussion in which many Committee members asked the panel of open government experts pointed questions and demonstrated a keen interest in evaluating the current state of transparency in our government.

Jim Harper of the Cato Institute, Daniel Schuman of Sunlight Foundation, and Celia Wexler of Union of Concerned Scientists also served as witnesses during this Sunshine Week hearing.

Canterbury mentioned that the President has made progress in his major commitments to openness, as demonstrated by POGO and our partners’ recently released report Highlighted Best Practices for Open and Accountable Government. Although there have been more proactive disclosures than ever before, the larger theme of the testimony centered on the inherent tension between the President’s pledge for a new era of unprecedented openness and a record of invoking “threats to national security” to keep the public in the dark time and again. The written testimony states:

There seems to be two Obama Administrations—two American governments, really. One looks like a democracy in which an open government accountable to the people is an ideal and a priority; and the other is a national security state, where claims of national security often trump democratic principles such as the people’s right to know, civil liberties, freedom of speech, and whistleblower protections. Of course, this is not an approach exclusive to this President. But the unchecked secrecy of Obama’s national security state is at cross-purposes with many of his Administration’s openness objectives, and it raises doubts about the President’s commitments and declarations about transparency.

Click here to see our government secrecy infographic

One illustrative example is the Administration’s record on whistleblower protections. President Obama was the first to support the Whistleblower Protection Enhancement Act, which finally passed after a 13-year campaign by POGO and our good government allies.

At the same time, the Administration’s appeal in Berry v. Conyers and Northover resulted in a federal circuit court decision that effectively removed existing whistleblower protections for all federal employees labeled “sensitive” despite the fact that these workers do not have access to classified information. In addition, the President’s recent signing statement to the national defense authorization bill asserts limits to unclassified disclosures to Congress.

During the hearing, Canterbury referred to the Associated Press’s findings that the Administration cited national security exemptions for withholding information under FOIA more often in 2012 than in any year prior. In reviewing 33 agencies and departments, the AP found that agencies invoked national security exemptions in over 5,200 cases in 2012, compared with just over 4,200 such cases in 2011, and only about 3,800 during President Obama’s first year in office. This is yet another example of the swing toward secrecy in what Canterbury referred to as the national security state.

During yesterday’s hearing, Representative Danny Davis (D-Ill.) questioned Canterbury on the AP’s findings that last year the Central Intelligence Agency (CIA) denied every request to waive FOIA fees and every request for expedited FOIA processing. She responded that the CIA’s secretive behavior certainly does raise concerns, and although there are legitimate national secrets that should be kept for national security reasons, the CIA is not immune from the public interest.

The AP’s analysis indicates that the national security state is indeed growing, and this trend is troubling because, in Canterbury’s words, “the more it grows, the more illegitimate secrecy threatens our basic rights and our democracy.”

POGO’s written testimony refers to a host of other examples of extreme secrecy in the name of national security that require the Committee’s attention:

We have objected to administrative action and proposed legislation to plug leaks of classified information that threaten free speech, freedom of the press, civil liberties, and whistleblowers. We also have raised concerns repeatedly about the aggressive prosecutions of so-called leakers. There have been more prosecutions for disclosures of alleged wrongdoing under the Espionage Act under this Administration than all others combined.

These actions are cause for alarm. Congress must ensure that the executive branch does not overstep its bounds, and Congress must strive to balance the need to protect U.S. security with public’s right to know.

The written testimony also directed the Committee’s attention to egregious problems at certain agencies, cover-ups to evade accountability:

The Department of Defense (DoD) has repeatedly withheld records to hide the extent of the water contamination at Camp Lejeune that poisoned an estimated million Marines, family members, and civilians for 34 years. The Food and Drug Administration (FDA) has spied on whistleblowers, prompting the Office of Special Counsel to issue a reminder to all agencies not to violate the rights of whistleblowers to make disclosures without retaliation.

POGO’s testimony also highlighted problems and possible solutions regarding the public’s access to government information through the Freedom of Information Act (FOIA). The delays, bureaucratic foot-dragging, outdated regulations, outrageous fees, backlogs, and unlimited loopholes (hundreds of statutory exemptions that lack oversight) are all obstacles to transparency. Some of the worst FOIA practices have been by the very agency tasked with issuing FOIA policy guidance to other agencies—the Department of Justice (DOJ):

Last year, the National Security Archive even gave DOJ its annual Rosemary Award for worst open government performance. As one of the contributing factors, the group cited Justice’s “‘FOIA-as-usual mindset’ that has failed to transform decades-old FOIA policies within its department, much less throughout the government.” When it did propose updating its FOIA regulations, we were alarmed by the ways in which FOIA would be undermined, including its proposal to lie to requesters, which was finally withdrawn after public pressure.

Ultimately, Canterbury suggests that a conflict of mission for the Office of Information Policy (OIP) at Justice may be the root of the problem:

In the end, we can never expect OIP to properly lead on FOIA compliance and ensure that the presumption of openness is employed because it has an inherent conflict of interest—a conflict of mission, really. DOJ is charged with defending the agencies when they withhold information under FOIA. This responsibility of serving as the agencies’ lawyers means that they do not have a primary interest in promulgating a presumption of openness. One need look no further than DOJ’s own proposed rulemaking on FOIA to see a defensive posture that undermines the public’s right to know. Clearly it is time to consider moving away from this dysfunctional model and centralizing FOIA authority at an independent entity without such conflicts.

Happily, there may be legislative fixes on the horizon. We applaud Chairman Issa and Ranking Member Cummings for proposing significant reform legislation to modernize FOIA. They released a discussion draft of the bill on Monday. This bill would codify into law the President’s order requiring agencies to act with a “presumption of openness,” withholding information only when disclosure would cause “foreseeable harm.” Making this standard the law of the land essentially shifts the burden of responsibility from the requester to the agency to assert that there is an interest protected by an exemption—a real reason for keeping information from the public. POGO’s testimony outlined a number of reforms included in the bill that we strongly support. Here are just a few:

  • Giving a boost to FOIAOnline by increasing the number of agencies that use this one stop shop for requesters.
  • Providing the Office of Government Information Services with more involvement in FOIA rulemaking and compliance to provide more balance with OIP’s role.
  • Encouraging more proactive disclosures.
  • Making more of FOIA requests, processing, responses, and policy available in electronic format and online.
  • Requiring agencies to review and update their FOIA regulations.

POGO’s testimony also mentions several other bills we support to increase government transparency and accountability in her testimony. The Digital Accountability and Transparency or DATA Act would help shine a light on how the federal government spends taxpayer dollars, centralizing and simplifying reporting standards so that every agency reports their spending in the same way. Canterbury also referred to POGO’s support for grant transparency and likewise urged the Committee to shine a light on contracting.

Finally, the POGO testimony urged the Committee to ensure proper implementation of the reforms they have championed:

The DATA Act, FOIA reforms, and whistleblower protections all require short-term investments to yield long-term savings to taxpayers. We strongly believe that investing in government watchdogs such as the Inspectors General, the Recovery Accountability and Transparency Board, the Government Accountability and Transparency Board, the Government Accountability Office, Office of Government Information Services, and the very effective Office of Special Counsel pays huge dividends to taxpayers.

During the discussion on investing in watchdogs during yesterday’s hearing, Chairman Issa said, “Audits gain us money! IGs have a net revenue gain through the work they do.” We couldn’t agree more.

Hopefully, by the time the next Sunshine Week rolls around, there will be more sunshine to report. In the words of UCS Senior Washington Representative Celia Wexler, “Agency culture always pushes back against transparency.” We are encouraged by the interest of the members of the House Oversight and Government Reform Committee, and hope that this 113th Congress will take a stand for more transparency and accountability to taxpayers. In particular, lawmakers need to do more to rein in the growing secrecy of the national security state.

 You can read POGO’s full written testimony here.

Image by Flickr user brownpau.

By: Suzanne Dershowitz
Public Policy Fellow, POGO

suzanne dershowitz At the time of publication Suzie Dershowitz was a public policy fellow for the Project On Government Oversight.

Topics: Open Government

Related Content: FOIA, Government Secrecy, Information Access, Sunshine Week

Authors: Suzanne Dershowitz

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