Over recent years the ever-growing concern over governmental transparency has emerged from all corners in the U.S. Whatever primary catalyst(s) may lie at heart of the matter, it’s very difficult to deny its definite existence. Below is a brief outline designed to provide a basic guide for conscientious citizens’ decisions and actions amid rapidly decreasing public accountability at all levels of U.S. government.
Is Open Government a purely theoretical ideal or a realistic promise by politicians?
Governmental openness to the extent of full public access on demand and direct citizen participation is neither novel nor revolutionary. The open government model is traceable to late 18th-century Age of Enlightenment days, when all Swedish territories adopted free press laws into their respective national constitutions. Significant political developments occurred elsewhere during the same time, such as the American Revolution, are widely believed to have been sparked by Sweden’s then bold move toward a free press.
In 1966, Congress enacted the nation’s first federal law with a stated sole design of facilitating greater governmental transparency. Codified at 5 USC §552, this legislation is commonly called the Freedom of Information Act (FOIA) and essentially mandates on-demand public disclosure of various documents maintained by government entities that were classified as top secret pre-FOIA.
Huge loopholes and major limitations of federal disclosure laws
Despite several decades of legislative history and evolution, FOIA remains hotly debated and harshly criticized. Most disgruntlement seems to revolve around several of at least 9 exceptions to FOIA’s mandatory disclosure requirements, including:
- Documents and records exempted from public disclosure via a valid Executive Order that promotes national security or good foreign policy;
- Data that is solely related to internal personnel rules and public agency practices;
- Information specifically exempted from disclosure by other statute(s) besides FOIA § 552b, provided such statute requires substantive content to be withheld;
- Trade secrets and information provided by a third party that encompass privileged or confidential commercial or financial data.
- Intra- and interagency correspondence that may be legally withheld from any party except another agency involved in adverse litigation with the agency.
- Medical and personnel files, that would clearly constitute unfounded invasion of personal privacy if forcibly disclosed.
- Certain data compiled by law enforcement agencies, but only to whatever extent that disclosure could be reasonably foreseen to interfere with law enforcement efforts
- Contained within or related to agency reports about oversight and regulation of financial institutions
- Geophysical and geological data to include maps and wells
In addition, the Postal Reorganization Act of 1970 codified at 39 U.S.C. § 410(c)(2) exempts the U.S. Postal Service (USPS) from mandatory public disclosure of “commercial information, including trade secrets, regardless of whether the original source is a person outside the USPS, if public disclosure would not be prudent business practice. On a brighter side lies the 1996 Electronic FOIA Amendments (E-FOIA) that mandate all federal agencies make certain records publicly accessible via electronic media.
Enter the Obama Administration Era
Five years after a historical political event of a successful bid for White House occupancy, U.S. President Barak Obama issued Executive Order 13526. This 2009 official decree mandated retroactive reclassification of some documents following a proper demand for disclosure pursuant to FOIA. In like fashion, elected representatives of the nation’s 113th Congress returned a unanimous vote for the FOIA Oversight and Implementation Act during early 2014. The latter legislation requires establishment of a central online FOIA platform to facilitate public disclosure requests and track multiple requests for documents or records by the U.S. Office of Management and Budget.
According to Congressional sponsor Darrell Issa (Rep., CA), the new law effectively shifts the burden of proof from requesters to government agencies with no good cause for withholding requested documents.
Empty promises that echo as hollow executive lip service
By every reliable account reviewed by this author, Barack Obama failed miserably in fulfilling primary election campaign promises to head the “most transparent Presidential administration in U.S. history.”
One recently featured article that analyzed and summarized a detailed Associated Press report of the actual effectiveness of Obama’s assurances of stricter FOIA compliance. The final conclusion reached revealed Obama’s administration as “uncooperative as ever.” per Associated Press investigative reporters, Obama’s administration has censored, denied, and interposed more legal objections to justify FOIA noncompliance, as evidenced by a record number of occasions.
FOIA petitioners’ extreme frustration leads to full-blown litigation
Relentless refusal to disclose non-exempt data per FOIA provisions has resulted in lawsuits that seek injunctive relief by court-ordered public disclosure of sensitive data. A prime case-in-point is civil liberties watchdog organization Electronic Frontier Foundation (EFF) resorting to judicial intervention to enforce FOIA provisions. Per EFF spokespersons, the subject matter of requested files pertains to classified records related to Foreign Intelligence Court opinions about the legality of compiling private citizens’ online communications by the National Security Agency (NSA). According to EFF legal representatives, the 20-day deadline for expedited processing of requests for full disclosure of documents has expired. FOIA’s expeditious request processing is designed to move time-sensitive, newsworthy data to the head of very lengthy lines of FOIA requests.
EFF’s lawsuit was prompted by the federal government’s disclosure of declassified FSC records that contain explicit NSA admission of switching e-mail filtering technologies in order to circumvent prior court orders to cease and desist covert monitoring of Web-based communications by several thousand Americans with no link whatsoever to terrorist activities.
The American Civil Liberties Union has followed suit (no pun intended) by launching adverse litigation against the U.S. Dept. of Justice to compel disclosure of vital data about undocumented aliens awaiting a final decision on their legal status being detained long past applicable deadlines. Despite at least one previous court order compelling disclosure pursuant to FOIA dictates, the DOJ stubbornly refuses to comply. This author personally cannot resist speculating whether a private organization would respond to valid FOIA requests by making no response. After all, government agencies like DOD don’t have to worry about profit margins or economic sanctions for noncompliance with the law, as officials are vested with legal authority to tax every citizen to the brink of bankruptcy or even beyond the point of no return.
Obvious conclusions and observations
It’s high time that American citizens took action to ensure FOIA enforcement and full compliance by the same organizations with delegated oversight responsibility for competent public administration. It is interesting to note that each reported case of recalcitrant denial of valid FOIA requests always seems to involve subject matter that is potentially very damaging to government officials. This is precisely why such data must be exposed to full public view. Full transparency and integrity go together like a fist and glove. Ergo, we must ask ourselves whether cloak-and-dagger secrecy conceals much larger underlying harm.