Below is a copy provided by Patrice McDermott’s of the speech she made during MNCOGI’s 2017 Finnegan FOI Award Ceremony.


 Patrice McDermott, Executive Director, OpenTheGovernment.org

Secrecy and Accountability – Looking Forward, Looking Back

Minnesota Coalition on Government Information

March 16, 2017

 

Thank you for inviting me to speak with you today.  I have been following the work of MN COGI for many years and invariably I have been impressed with what both the members of the coalition and the people of Minnesota have done in the area of open government.  And today’s winner of the 2017 John R. Finnegan FOI Award, Tony Webster, is yet another impressive recipient.  So, I am very honored to be here today.

As many of you know, I have been at the work of pushing the federal government to reduce unnecessary secrecy and to be more open and accountable to the public for quite a while – so I have a lot to talk about but will limit myself to just a few topics.  And, quite frankly, in many areas there has not been a lot of positive change.

Let’s take FOIA — as this is Freedom of Information Day.

For years Clinton’s Attorney General, Janet Reno, has been something of a touchstone – rhetorically, at least – for the FOIA community.  After all, she was the child and sister of journalists. One journalist said in 1996, “I don’t think we’re the enemy to her.”  Her 1993 Attorney General Memo said, in summary, “it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.”

So, great start. But… in 1996, Reno reported that the FBI was currently “5.6 million pages behind in processing FOIA requests.” However, she noted that about 70 percent of DOJ divisions had cut their backlogs. So, maybe the Memorandum helped.  But we really don’t know – and that was just DOJ.

The Ashcroft Memorandum replaced Reno’s. That memorandum did not direct any specific activity by agencies, but it did highlight the considerations that might be deployed to limit discretionary releases and it highlighted the importance of invoking Exemption (b)(5) to protect recognized legal privileges — such as the deliberative process privilege.

In the months after it was distributed to department and agency heads, the National Security Archive was told anecdotally by a few agency FOIA professionals that the Ashcroft Memorandum had had little impact on their FOIA processing. Indeed, one senior agency official indicated the Ashcroft Memorandum may have had the “softest landing” that could be expected. An official administering the FOIA at the appellate level for an agency receiving several thousand requests per year noted his panel’s work “hasn’t been at all affected, virtually not.” And, a FOIA official at a defense agency reacted to the new Memorandum with a shrug: “Yeah. Okay.”

The Holder Memorandum replaced the Ashcroft.  It reiterated most of what was in the Reno Memorandum.  And the FOIA Improvement Act passed last year; it codified the “presumption of disclosure,” and ended the permanent “you can’t have it because we don’t want to give it to you” deployment of the deliberative process privilege (specifically, it prohibits the withholding of information under Exemption 5 for records created 25 years or more before the date on which the records were requested).

So, it was hoped that we might be entering a new age of good responsiveness to FOIA requests.

But ‘twas not to be.  For example, the 2016 FOIA statute requires agencies to update their FOIA regulations – concerning fee waivers, appeal deadlines, etc. — within 180 days of enactment – or by December 27, 2016.  A recently released National Security Archive audit found, however, that only 38 out of 99 federal agencies have done so. The remainder are likely many of the agencies that have not updated their regs since the 2007 FOIA amendments…

I will pause here for everyone to sigh.

Going forward on federal FOIA, who knows?!  

At his Judiciary Committee confirmation hearing in January, Senator Sessions was asked by Senator Leahy about compliance with the Freedom of Information Act (FOIA), specifically how Sessions would enforce the “presumption of openness” in the face of the President-elect’s resistance to transparency? Senator Sessions noted that the FOIA “is an important law that has played an integral role in providing the public with the tools necessary to oversee their government,” and committed to ensuring that “the Department and the Executive Branch appropriately comply with FOIA, as well as work with you and this Committee to make sure that the letter and the spirit of FOIA is carried out.”

We shall see. A good bit of wiggle room in that “appropriately”…  One thing we can be almost take-it-to-the-bank certain of, though, is that we will not see reform in access to DOJ Office of Legal Counsel opinions.  The DOJ has cited attorney-client privilege to justify withholding OLC memos with key legal opinions – or justifications – on issues of critical importance for accountability, including the Bush-era torture program, targeted killing programs, and expansive NSA communications surveillance programs. Mr. Sessions has been adamant about protecting attorney-client privilege within the government, and sees the OLC as the attorney both to the President and to agencies.

I frankly do not think, though, that commitments spoken in confirmation hearings will make much difference in FOIA implementation. To my mind, it has been lack of leadership that is the persistent impediment to achieving real reform in the implementation of FOIA in the public’s interest. As you know, on most of the exemptions to the statute, the FOIA does not speak in terms of “shall not disclose.” Rather, it tells agencies that information falling within one or more of the non-mandatory exemptions does not have to be disclosed – or withheld, for that matter.  Instructing agencies to make greater use of “discretionary disclosure” is not enough. In order to overcome agency culture, bureaucratic wariness of sticking one’s neck out, and – sometimes – just sheer resistance. The hortatory rhetoric needs to be followed up on – with leadership from the top of the agency and the top of the government.  That did not happen with Reno, nor Ashcroft (for which we can be thankful), nor Holder.  And, frankly, I am not holding my breath if there is a Sessions Memorandum.  

It has been argued in the openness community that FOIA should be the last resort, that government has an affirmative duty to make information available and accessible to the public.  The problem is that government generally is very happy to tell you what it wants you to know.  And FOIA has been for all the records they would really rather not share with the public.

We are deeply concerned now, of course, that FOIA will become the first, last, and only resort.  

I am sure all of you are well aware of what has been happening with attempts to silence government employees – including their right to talk to Congress! – and with the removal of information from government websites. It is good to know that Minnesota is very actively engaged in the Data Rescue initiative, and that much of what was on federal government websites prior to January 20th has been captured and archived by the End of Term Harvest.  OpenTheGovernment.org is tracking the reports of information reported to have been removed and noting how the issue has been resolved – if it has.

And there is a FOIA success story related to this. Prior to January 20th, there were individual efforts to backup the EPA website. There were also, apparently, plenty of Freedom of Information Act (FOIA) requests for the site. On February 16th, Gizmodo reported that the EPA posted a snapshot of the site as it existed on January 19, 2017 (or at least most of it: a number of elements were not backed up by the individual efforts because of size constraints).

Back to AG Sessions for a second…. There is word that folks inside the DOJ are pointing out to Sessions’ office that all of the things he might want to change about the Holder Memo are already codified in the new FOIA amendments.  And we would point out, he has other problems to deal with….

Speaking of which… How about those leaks?

Once again, let’s start with George W. Bush.  When I went back and looked at the issues of leaks in that Administration, I realized the many similarities between that Administration and the current one.  

One constant in all recent – and probably all – Administrations is the political use of leaks to the press by senior officials. As James Reston quipped, “The ship of state is the only known vessel that leaks from the top.” Every president wants to police contacts with the press.  

Bush, in his first term, was very disciplined in a policing leaks from his Administration and did not have as many as previous administrations, including Reagan and Nixon. And, because Bush did not like ‘showboating’ (otherwise known as sharing the limelight) a lot of Bush administration people were not quoted by name, much fewer than in the Clinton administration or previous administrations.  There was, though, a different category of leaks by senior government officials in the Bush Administration — revenge. (i.e., the case of the giving of the name of the then-covert CIA intelligence officer, Valerie Plame – where the motive seems to have been revenge against her husband through her)

Leaks that do not come from the top of government, though, are NOT just “policed” — by any President. In the case of Bush, it has been noted that he was perpetually angry at the press; he and his aides saw – and called –the press a special interest. This was reflected in the way the Administration decided to aggressively go after reporters — in a way that the Nixon administration and previous administrations did not. As Ken Auletta has noted, the Bush administration decided that they were going to potentially prosecute the Washington Post reporter (Dana Priest) who reported on secret prisons in Eastern Europe, and they might prosecute the New York Times reporter (James Risen) who reported on secret eavesdropping by the NSA.  Priest was never prosecuted; Risen was subpoenaed – not in relation to the NSA story — but in relation to the case of a CIA leaker/whistleblower in 2008.[9] Risen fought the subpoena which expired in the summer of 2009.[10] The Obama administration renewed the subpoena in 2010.[10]  And, thus, Risen is in the list of cases attributed to the Obama Administration.

I will come back to the Obama Administration if we have time – I think the story there is pretty well known & has been widely reported.

 

I want to title this section on the Trump presidency – I am not sure you can really say Administration as yet – The Swamp Strikes Back.  

In the days just before and after Trump’s inauguration —

  • The Defense Department used Twitter to publicize an article about an Iraqi refugee who became a U.S. Marine.
  • Even before he took office, employees at the Energy Department shared information about a Trump transition team request for the names of department staffers who’d worked on President Barack Obama’s climate-change initiatives. The ensuing backlash prompted transition officials to disavow the questionnaire as a mistake.

In ensuing days, the drafts of Executive Orders have been leaked. And folks in the agencies are talking voluminously but off the record – and sending documents to the press.  Every time you see a draft of an executive order – or a comment on its drafting or implementation, it is a leak. A few examples

  • The Associated Press obtained a draft of an executive order showing that Trump was considering a major review of America’s methods for interrogating terror suspects and the possible reopening of CIA-run “black site” prisons outside the United States. The same order would reverse the planned closure of the U.S. detention facility in Guantanamo Bay, Cuba.
  • Officials at the Department of Homeland Security say they could have better prepared for the travel ban had they not learned about the restrictions in real time. http://www.politico.com/story/2017/02/trump-aides-distrust-confusion-leaks-234550
  • State Department experts said the executive order on reversing the decision on the Keystone and Dakota Access pipelines was flawed because it involved a company in the middle of suing the government.

And from the agencies —

Other than the Jimmy Carter Administration – especially early on – I cannot recall a more thoroughly undisciplined White House. Those of us in DC – and I am guessing elsewhere (I do not follow Twitter much at all) — have dropped-chins almost all the time at what is coming out of the Trump White House.  Perhaps the “best” leak was that Sean Spicer’s meeting with staff – on leaks – was immediately leaked.  The list of leaks is too long to enumerate (and are likely well-known to the folks in this audience). None of them make the President look good or in control.  

While I will admit to some schadenfreude, this is not a sustainable mode of operation and will likely only feed the White House’s strong distrust of all but a few select media outlets.  That in turn, will likely feed secrecy, distrust (among much of the public), lack of faith and trust among our allies and friends, uncertainty around the world and, ultimately, diminished accountability to the American public.  I don’t have an easy solution, but I think it is imperative that we support the media as they work to fully research and report what is happening, that we support the career civil servants who continue to do the work of government in protecting the public and our rights, and that we demand that our Members of Congress honor their obligations to all persons within our boundaries and to hold every administration fully accountable.

Thank you.