POGO – Project On Government Oversight
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.
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 You can read POGO’s full written testimony here.
Image by Flickr user brownpau.
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