Justice Louis Brandeis once wrote, “Sunlight is said to be the best of disinfectants.” If that is true, we need to pull back the curtains of every federal agency window, as our government needs to bask in a thorough cleansing.
This March 13-19, journalists across our country will celebrate Sunshine Week – engaging in dialogues revolving around the importance of open government and freedom of information. It seems appropriate, then, to evaluate just how many government curtains still need to be drawn back, before information is finally allowed to breeze through, as it should.
Beginning at the top, we must remember that the Obama administration once vowed to create an open government – promising to be the “most transparent administration in history.” The reality has proved itself to be just the opposite.
Take the Freedom of Information Act (FOIA), for example. According to the House Committee Chairman on Oversight and Government Reform, Jason Chaffetz (R-Utah), over 550,000 FOIA requests were denied during the president’s tenure. Countless others suffered unconscionable delays, seemingly perpetrated to prevent direct public access.
Former CBS News investigative reporter and senior independent contributor to the Daily Signal, Sharyl Attkisson called the FOIA “a pointless, useless shadow of its intended self.”
During a 2015 House Committee meeting to discuss FOIA delays and federal obstructions, Attkisson detailed her experience with the Act. Seeking information for a story, Attkisson filed an FOIA request with the Defense Department in 2003, when her daughter was 8-years-old. Ten years later, Attkisson finally received the paperwork she requested – in time to escort her daughter to college. “FOIA should be one of the most powerful tools of the public and the press in a free and open society,” Attkisson said. “Instead, it’s largely a pointless, useless shadow of its intended self.”
Under the terms of the law, the government has 20 business days to respond to FOIA requests, with 10-day extensions allowed under “unusual circumstances.”
Rather than speedy responses, most requests are years in the fulfillment, with the government citing lack of staff or funding as the cause of delays. Vice News investigative reporter Jason Leopold testified at the hearing that less than 1 percent of his requests are ever answered within the required timeframe.
Leopold cited one instance where his application was deemed “too broad,” so he amended and re-filed it. After a second denial for being “too broad,” Leopold took the matter to court.
“Recently they said that we’ll give you some documents, as long as you promise to never file a FOIA request again and don’t have anyone else file a FOIA request on your behalf,” he said.
When questioned as to the legality of that request, Leopold responded, “I don’t know, but they put this in writing.”
The Washington Times recently bemoaned their own experience with FOIA requests being denied for being “too general.”
The Times’ reporters were seeking information from the Defense Department’s Defense Threat Reduction Agency regarding their involvement in the removal and destruction of Syria’s massive chemical weapons stockpiles – deemed some of the world’s largest.
After repeated back and forth communications, the Times’ final request stated, “The Washington Times is asking the Defense Threat Reduction Agency to provide any reports — created by DTRA’s team in charge of disposing of Syria’s chemical weapons components and submitted to DTRA headquarters — that contain information on the components handled and their origin, be it Syria or from a third party or country to Syria. I assume DTRA’s team must have filed reports on its mission, to include the types and amounts of chemical weapons components removed from Syria.”
This time, the application was issued a full-scale denial letter stating, “The responsive record is exempt from mandatory public disclosure, and is being withheld in full accordance with U.S. law.” The matter is currently under appeal.
In 2009, President Obama issued an executive memo, promising to lead a transparent administration with a new culture of open government. His directive also acknowledged the importance of public disclosure of federal information, expressly granted through FOIA requests.
The memo begins, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
In all fairness, one may argue that there seems have been a move towards developing openness in this administration. The WhiteHouse.gov website still boldly touts the same.
In January 2009, the President invoked a new Open Government Directive, which promised to:
- Publish Government Information Online – including annual FOIA reports for every government agency on their Open Government Webpage
- Improve the Quality of Government Information – through the designation of a “high-level senior official to be accountable for the quality and objectivity of and internal controls over, the Federal spending information publicly disseminated…”
- Create and Institutionalize a Culture of Open Government – through the development and publication of an Open Government Plan to “describe how it will improve transparency and integrate public participation and collaboration into its activities.”
- Create an Enabling Policy Framework for Open Government – to “open new forms of communication between a government and the people.”
This mindset seems to have been forgotten over the past seven years, however, as we’ve seen more secrecy, closed doors, and governmental-delay tactics during this interval than ever before.
In March 2015, for example, 50 of 101 audited agencies had not yet adopted these new standards and updated their FOIA regulations to 2007 Congressional FOIA amendments. Even worse, 55 out of 101 are still operating under laws that predate the 2009 Open Government Directive. New 2016 figures are expected to be released during this year’s Sunshine Week.
The administration, itself, has done no better than its agencies. While a 2009 announcement promised full disclosure of both names and dates of those visiting the White House, for example, exceptions to this disclosure became the standard operating procedure– with thousands of names excluded from White House records. Even after it became public knowledge that clandestine meetings at nearby townhouses and cafes became standard practice to prevent guest names from capture on White House records, federal officials argued in court that “visitor logs are not ‘agency records’ subject to FOIA” – the exact opposite of what was originally promised.
In a similar fashion, Obama seemed hard-pressed to disavow what some have called the “secret law” followed by his predecessor that allowed controversial memos to remain apart from public scrutiny. The Obama administration went so far as to eventually release several legal memos from the Bush administration, in an attempt to prove its commitment to government transparency.
Not long after the victorious release of Bush presidency memos, Obama’s legal counsel created a confidential secret memo – offering advice on whether CIA operatives were authorized to kill U.S. citizens operating with terrorist groups on foreign soil. In this case, the citizen in question – Anwar al-Awlaqi – was deemed by the government to be an active member of the al-Qaeda organization, and thus, fair game for targeted assassination. When pressed to provide evidence of the same, federal officials claimed they could not release such secret information.
When pressed that such action should only be resorted to after legislative approval, Attorney General Eric Holder famously retorted “’Due process’” and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
Even the ACLU has expressed frustration that their FOIA applications frequently receive inadequate responses. Recent requests for information regarding the drone program have either been denied or received heavily redacted responses – causing the Union to file several lawsuits against the government. The group reminded supporters the president reaffirmed his stance on transparency in his 2013 State of the Union address; wherein he said that “in our democracy, no one should just take my word for it that we’re doing things the right way.”
Evidently, the old hypocritical standard that one should “do as I say and not as I do,” seems to apply when it comes to our federal government.
To take this administration at their word that transparency is the standard and not the exception is to disavow reality. As Chaffetz told Justice Department officials during his 2015 hearing on transparency, “You live in a fantasy land because it ain’t working.”
As journalists, we are reminded of the importance to always seek out the truth and report it. When it comes to government reporting, especially, we must continue to keep the curtains pulled back to let the sun shine in – or, at least, keep a can of Lysol at the ready.