The Obama administration has come to be regarded as an administration that is being deceitful when it comes to policies of openness and transparency and, in many cases, worse on freedom of information than the Bush Administration. That is something government officials have had to confront during Sunshine Week, as they try to celebrate freedom of information and open government.
Now, here is a roundup of key stories on transparency, open government and Sunshine Week that are of significance.
—Associated Press (AP) highlights examples that contradict Obama administration’s commitment to openness. A story from the AP notes how today’s actions by the administration clash with the promotion of transparency going on this week.
The Obama administration called upon Congress to make a “whole new category of information” under the Freedom of Information Act (FOIA) secret. In testimony on Capitol Hill, the Justice Department’s Director of Information Policy, Melanie Pustay, urged senators to “protect against public disclosures of material about cybersecurity, critical U.S. computer networks, industrial plants, pipelines and more. Businesses have sought such a new exemption under the law for at least 10 years.”
Journalists were on a conference call organized by the White House. They were given a preview by “two senior officials” of an “announcement by President Barack Obama about an important China trade issue but told reporters that no one could be quoted by name.” AP went ahead and published the names of these officials anyway. They were ”US Trade Representative Ron Kirk and the deputy national security adviser for international economic affairs, Michael Froman.”
This good piece of journalism goes on to conclude by noting the Obama administration is likely to keep secret “the wine list for this week’s state dinner when British Prime Minister David Cameron visits.” How many more secrets will the administration commit to keeping before the week is over?
—Josh Gerstein of POLITICO has some of the best coverage of Sunshine Week. Here he addresses doubts about FOIA statistics that were boasted about in Attorney General Eric Holder’s speech for this week of celebration.
Holder highlighted a memo with guidelines that he issued in 2009 reversing “an aspect of the Bush administration’s” FOIA policy and calling on “agencies to err in favor of disclosure in more instances.” But, open government advocates approached this statement with caution.
Some openness advocates, including some of those in attendance, dispute the impact of Holder’s memorandum. The FOIA Project issued a report earlier this month saying there was no evidence of a change in the handling of cases that go to court. Some lawyers deeply involved in FOIA cases told POLITICO recently that the administration’s posture in such disputes was as resistant to disclosure as the Bush administration had been—or even worse.
However, there’s some evidence that more government information is making it out without litigation. The White House says use of FOIA exemptions is down and years-long backlogs of old requests are being reduced. Most agencies are putting more databases online, where they can be retrieved without the need for a FOIA request.
Gerstein also covered the Freedom of Information Act hearing on Capitol Hill today.
—Justice Department jukes stats on FOIA requests. The National Security Archive, which gave the DoJ the Rosemary Award for “worst government performance by a federal agency in 2011″ called out Holder for delivering a speech that restated statistics that have been discredited.
A National Security Archive analysis of the DOJ’s release rate shows that the DOJ excluded nine of the eleven reasons that the Department denied documents to requesters from its count. These include denials based upon: fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits); “no records” (very frequently the result of inadequate searches by DOJ employees); and requests “improper for other reasons” (which ostensibly include the “can neither confirm nor deny” glomar exemption).
What Holder did not mention was that when the full eleven reasons for denial are factored in, the Department of Justice’s “release rate” is a much more believable 56.7 percent…
The DoJ has also been using “new and creative” ways to reduce backlogs, which basically means they have been manipulating the math so that the numbers look better for the department.
The National Security Archive lists the following as some of the department’s failures that went unmentioned in Holder’s speech:
…the DOJ Office of Information Policy’s attempt to issue new regulations that (among other steps backward) would have allowed the agency to lie to FOIA requesters and exclude online media from news media reduced fee status; the “odd” argument made to the Supreme Court by the DOJ’s Assistant Solicitor General that the Freedom of Information Act should become a withholding rather than a disclosure statute; and the DOJ’s “war on leakers” which has surely had a chilling effect upon –to use Holder’s own words– “the sacred bond of trust which must always exists between the government and those we are privileged to serve.”
—Project on Government Oversight (POGO) marks Sunshine Week with FOIA releases. Today’s release highlights how inspector general investigations are typically kept secret. Through FOIA, POGO obtained IG documents that showed a cade involving “drunkenness on the job, a mismanaged investigation and the US agency that oversees nuclear power.”
Nuclear Regulatory Commission (NRC) IG documents obtained by POGO outline a 2006 case in which the president of Nuclear Fuel Services (NFS)—a company that is licensed by the NRC to manufacture nuclear fuel for Navy submarines—allegedly “attended a force-on-force exercise under the influence of alcohol.” (A force-on-force exercise is a prescheduled security inspection conducted by the NRC to simulate threats to nuclear facilities.)
—Boston Globe covers National Archives chief David Ferriero, the first librarian to hold the position. He says he favors openness but “agencies cling to a maze of often-contradictory secrecy rules and a deep-seated culture to lock away even innocuous information.”
The Globe highlights Ferriero’s role as the overseer of the National Declassification Center, which was created by Obama by an executive order signed in 2009. This means he is the “point man for an aggressive effort to try to release, by the end of next year, a backlog of an estimated 400 million records that are more than 25 years old.”
It is a Herculean task that open government advocates complain will probably take many years. Of the 400 million-document backlog, Ferriero reports, about 125 million documents have been inventoried but only 26 million have been fully reviewed and processed. Of those, meanwhile, nearly 10 percent will remain secret on national security grounds. [emphasis added]
That means millions of documents that are part of a backlog will never see sunshine on “national security grounds” that are probably bogus.
Here is the complete coverage of the Senate committee hearing on FOIA exemptions in the National Defense Authorization Act (NDAA) that was held this morning (and mentioned above).
Full witness statements are now posted at the Senate Judiciary website. Retired Marine Master Sergeant Jerry Ensminger gave the most profound testimony of the day. I posted a significant portion at the top of my blog post on the hearing, which he delivered on water contamination at Camp Lejeune that was responsible for the death of his 9-year-old daughter.
Here is a critical portion I left out from Ensminger’s submitted witness statement:
There will be more coverage of freedom of information and transparency tomorrow and then Thursday morning I will be heading to Fort Meade in Maryland to cover Pfc. Bradley Manning’s pre-trial motion hearing. As many know, Manning is accused of leaking classified information to WikiLeaks. His case has ignited much debate about government secrecy.