In Case You Missed It: Fed Bank Data Released

While many people focused more on family reunions than the Federal Reserve, late last month Bloomberg News released the data on which banks received overnight loans from the Fed during the financial crisis that peaked in 2008. Release of this data was a hot topic during the debate over the Dodd-Frank financial reform package. Bloomberg News had sued for the data, and Congress wrote in a two-year delay on disclosing the data under FOIA.

Anyone interested in analyzing the data should read this helpful primer from Bloomberg News on the key numbers that have been the focus of controversy.

FCC responds efficiently, but most interesting information left out

The Federal Communications Commission on November 28th posted in one website documents responsive to multiple FOIA requests for information regarding Lightsquared, which is setting up a satellite-based broadband network.  From the FCC:

The Federal Communications Commission has received numerous requests under the Freedom of Information Act (FOIA) for documents related to LightSquared, Sky Terra, Mobile Satellite Ventures, Motient, Harbinger, TerraStar, and people related to these entities. For the convenience of the requesters and the public, under the “frequently requested records” provision of the FOIA, 5 U.S.C. § 552(a)(2)(D), the FCC has created this public web portal to provide ready access to publicly available documents and other responsive documents not otherwise exempt from release under the FOIA

This response will surely help the FCC efficiently respond to each requester. Sounds good, right?

But what the FCC chose to disclose — and not disclose — is at the heart of the dispute, the Washington Post points out in this story posted Nov. 23:

“The trove of hundreds of documents shows widening concern by lawmakers, federal agencies and consumers over whether the satellite technology owned by the firm, called LightSquared, would interfere with GPS systems and put airplanes in harm’s way. These officials also questioned whether the FCC had thoroughly tested the system.

The release, which was in response to a Freedom of Information Act request by several media outlets, largely cull from the public record and did not include any of the internal deliberations that led FCC Chairman Julius Genachowski to bypass a vote by his own commission and allow LightSquared to move forward with its plans.”

So by efficiently releasing documents in one place on a particular hot topic, the FCC did well.  By not yet releasing the document trail explaining the FCC’s handling of Lightsquared, the FCC still falls short.  This shows the difference between processing problems and the substance of agency’s decision to disclose.  Too often agencies can get away with avoiding disclosure of the most inconvenient information.

OGIS puts up new website

The FOIA Ombudsman is rolling out a new website this week.  The Office of Government Information Services (OGIS) created a sleek design with a library of informative background for new requesters and technical background for more experienced requesters.

Much of the new site will be immediately useful to FOIA users.  The OGIS Library should prove useful for requesters who are new to FOIA and want to better understand the FOIA-speak that they sometimes receive in agency responses, although this material is similar to the technical background on the Justice Department’s FOIA.gov.

Other parts are aspirational:  OGIS includes a section on Advisory Opinions but has not issued a single advisory opinion to date.  OGIS notes the office is developing guidance on to explain how and when they will be used.  Thus far, they have been a tool to be avoided, but we believe advisory opinions should be a useful tool that OGIS should use often.

Sunshine Week 2012

Sunshine Week, the annual celebration of open government, will be held March 11-17, 2012.  The week coincides with the birthday of James Madison (March 16th).

Initiated and sponsored for years by the American Society of News Editors, this year Sunshine Week is a collaboration between ASNE and the Reporters Committee for Freedom of the Press.

In the past, journalists have conducted audits of FOI laws, policymakers write opinion pieces, editorial cartoonists contribute works for broad distribution, interest groups sponsor programs, and Congress holds a hearing or two to push bills or take stock of where we are with government transparency.

AP study of open gov laws shows Open Government Partnership faces big challenge

The Associated Press (the only newsgathering organization that is a member of SGI) found the majority of countries violate their freedom-of-information laws, the AP reported in an audit released on November 17.

The audit, in which the AP submitted requests for documents to test the speed and quality of responses, should provide a good baseline for evaluating the impact of the U.S.-led Open Government Partnership, which launched earlier this year.

 

CNN notes exemption complicates reporting on Penn State scandal

We give thanks in this week before Thanksgiving to the CNN staff reporting on the Jerry Sandusky scandal at Penn State for explaining how a weakness in the public records law in Pennsylvania hampers efforts to unravel how officials responded to the allegations.   And for calling out the fired university president for fighting against transparency in the years since the alleged events occurred.

Fixing FOIA: Commentators reacting to DOJ’s reversal

The reaction was swift when the Justice Department confirmed in a letter to Senators Charles Grassley and Patrick Leahy that they would not move forward with their plan to say documents don’t exist when, in fact, they do.  You can read the reaction through a simple Google search.

Fixing FOIA update: Justice backs away from “lying”

Today we’re happy to note the Justice Department is withdrawing its proposed rule to sanction responding to certain FOIA requests for law enforcement records as if records did not exist when, in fact, information does exist (but is out of FOIA’s reach).

FOIA: The truth laces up its shoes

Imagine you’re in a bar and the guy next to you starts impressing a crowd with stories of battlefield bravery and military decorations. Only you know he’s faking. How could you prove it? It’s not far-fetched: California water official Xavier Alvarez claimed to be a Marine who retired with twenty-five years of service and a Congressional Medal of Honor for getting “wounded many times by the same guy” – but listeners had no way to know whether he was being honest.

Fixing FOIA: Justice proposal yet again shows FOIA needs leadership

A current, completely avoidable squabble arose this week over how the Justice Department should word responses that could reveal the existence of an investigation.  This dispute again shows the FOIA needs more attention and forceful leadership to resolve persistent problems and make the FOIA process work better.

Here’s the current quandary:  How should the Justice Department respond to FOIA requests without tipping off suspects who are targets of secret criminal investigations?  Individuals or private entities trying to confirm whether they are subject to an investigation turn to FOIA as a convenient tool.  They file requests for documents hoping the government’s response will reveal whether an investigation has been opened, closed or didn’t exist in the first place.  To avoid tipping its hand, the government’s response has to be identical regardless of whether records exist or not.  The FOIA statute allows the government to “treat [such] records as not subject to the requirements of” FOIA. That means, don’t review the information to redact sensitive material and disclose the rest; simply ignore the information altogether.

The Justice Department has proposed that, in these circumstances, the government should respond “as if the excluded records did not exist.”  But that goes too far, the Electronic Privacy Information Center charges.

Clearly the government should not say records do not exist when, in fact, they may.  Nor should the government’s response tip off targets of investigations.  But there’s an easy solution to this problem, as the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org noted in their joint comments.  The government could give an identical response explaining it would neither confirm nor deny the existence of a record. (This isn’t a new idea, of course.  It’s longstanding practice called a “Glomar” response started when the U.S. didn’t want to confirm or deny it had used a massive vessel called the Glomar Explorer specifically designed to take possession of a sunken Soviet submarine.)

The nonprofit groups’ comments trace the debate on how agencies should respond going back decades. While the government’s interest in protecting confidential investigations is serious, and the public’s interest in proper administration of FOIA, the fact this has not been resolved is remarkable.  The approach suggested by the nonprofit groups should allow the government to withhold while giving a truthful, informative and standard response to the requester.

Add this to the longstanding problems that require better leadership to ensure FOIA is implemented in a timely, useful manner.