Spring cleaning for b(3) provisions

Spring is a time of growth, change, and ritual; for the openness community, that means Sunshine Week, the release of agency annual FOIA reports, and fresh hope that this year will bring more transparency from the federal government.

Specifically, this year’s FOIA reports detail the use of several new b(3) provisions:

Better late than never: grand jury material of historical value

Grand jury information is one of the most sought-after types of information that the public cannot see generally under the federal FOIA. Think spies, organized crime, and sports stars accused of cheating through performance-enhancing drugs. So it is welcome to see the Justice Department recently announce a move to open the door on grand juries to the public just a little more.

American laws and courts have long recognized that grand jury information merits secrecy, but several recent cases developing a “historical significance” exception have led the Department of Justice to propose codifying the terms under which courts may release such material. Traditionally, grand jury information has been protected – indefinitely – by Rule 6(e) of the Federal Rules of Criminal Procedure, which provides five specific exceptions. Rule 6(e) is of interest to us because it is one of the most widely- and frequently-used statutory exemptions to the Freedom of Information Act (FOIA), called a “b(3)” after the subsection of FOIA permitting such additional exemptions.

In an October 19 letter, Attorney General Eric Holder recognized that litigants had won the release of grand jury information regarding several cases of historical significance: the Alger Hiss case (released in 1999), the trial of Julius and Ethel Rosenberg (2008), a 1964 jury-tampering prosecution of Jimmy Hoffa (Sr.) (2009), and testimony from ex-President Richard M. Nixon in a 1975 case involving Watergate (2011).

Here’s the problem: As Holder noted, none of these releases fell under any of the existing exemptions to secrecy under Rule 6(e). So, whether the courts will release grand jury information has become entirely unpredictable, based solely on the terms of the statute. To provide more clarity, Holder proposes to permit disclosure after thirty years – under certain conditions – and require disclosure after seventy-five years. (As Steve Aftergood noted, the thirty-year time period proposed dovetails neatly with the disclosures already ordered by courts.)

While the substance of this issue might not be a central concern of ours at SGI, it does involve several issues of interest to us:

• We are pleased to see courts and DOJ in preliminary agreement that an open-ended rule conferring secrecy can be weighed against the public interest in government-held information of historical significance.
• We are glad that the OPEN Government Act of 2007 amended FOIA to require agencies to provide more detailed information about their usage of each b(3) exemption statute, which enables us to gauge the importance of provisions such as Rule 6(e).
• We are also glad to see more public attention to, and consideration of, records of historical significance – and efforts to obtain information that can help us understand more about our nation and our history.

By the way, if anyone has run into a Rule 6(e)-based FOIA denial that seems unwarranted, drop us a line.

Pendulum swings towards disclosure, but agencies may push back

Advocates of transparency and access to government-held information may have gotten more than they expected in the Supreme Court’s recent Milner v. Department of the Navy decision, as the high court rejected a long-running agency exemption as impermissibly overbroad. But as agencies try to decide which information may now be eligible for release, we are concerned that they may overcompensate by using other exemptions to withhold information, by pushing a hodgepodge of legal and political protections, or both.

FOIA Oversight in the House

SGI Coordinator Rick Blum testified about FOIA’s capabilities and constraints at a full meeting of the House Committee on Government and Oversight Reform, as one of several witnesses at “The Freedom of Information Act: Crowd-Sourcing Government Oversight. Joining Blum on the panel were Miriam Nisbet, director of the Office of Government Information Services, Dan Metcalfe, executive director of the Collaboration on Government Secrecy, Tom Fitton, president of Judicial Watch, and Angela Canterbury, Director of Public Policy at the Project on Government Oversight.

Chairman Darrell Issa framed several issues early and quickly by suggesting that FOIA should expand, but ultimately become obsolete as agencies evolve from a request-based model of releasing information to a world of wide-ranging, affirmative disclosures, as technology makes it increasingly simple for large volumes of information to go online for public access. Issa expressed dismay at the tendency of government actors to have an easy time praising transparency but a harder time practicing it; he also noted that FOIA reform need not be partisan, citing efforts last year to repeal secrecy provisions in the Dodd-Frank financial reform bill. Ranking member Elijah Cummings added that he had just reintroduced legislation from the previous session of Congress which had passed the House with overwhelming bipartisan support, including Issa’s: a package of five reforms called the Transparency and Openness in Government Act (H.R. 1144).

Members of the committee and witnesses wrestled with several persistent issues: How can we harness technology to streamline bureaucracy and maximize the sharing of information? How can we tell which changes in policy and practice contribute to the most improvement within agencies? Are there specific best practices that can be discerned from some agencies and applied at other agencies (actually, OGIS has crafted a six-page “best practices” report, but it seems to be an ongoing process)?

We look forward to continuing this discussion, and others, inspired by Sunshine Week and increased attention from the rich variety of people and offices involved.

Congress ought to repeal law concealing guns used in crimes

After publishing a lengthy investigation showing that guns used in crimes can be traced to a relatively small number of gun dealers, the Washington Post today editorialized that Congress should repeal the law that keeps that very data from the public.  Even though the federal government collects such data, Congress barred public disclosure of those data in a little noticed amendment to a 2003 spending bill.

The Post concludes by noting the implications of such secrecy:

Those with a high number of “crime gun” sales should be inspected frequently, and penalties for dealers who allow illegal transactions should be swift and stiff. That isn’t likely to happen, though, as long as the public is kept in the dark about the extent of the problem and who the wayward dealers are.

Sounds about right.

Let’s be clear – a friendly reminder

Recently, as the 111th Congress concluded its business before the 2010 midterm elections, Congresswoman Loretta Sanchez (D-CA) introduced a bill, H.R. 6266, which, among other things, proposes to exempt certain law-enforcement guidelines from disclosure under the federal FOIA.  But it doesn’t even mention FOIA.

SGI applauds Congress & White House for quick fix to overbroad FOIA exemption for the SEC

Today President Obama signed into law a bill that sped through the House and Senate to quickly fix an overbroad exemption from disclosure under the Freedom of Information Act.  The Sunshine in Government Initiative appreciates the quick action and hard work of transparency leaders in Congress to correct this mistake.

Tracking FinReg’s SEC provision: Subtle word changes make a big difference

Between the legislative record for the SEC FOIA exemption in the Dodd-Frank financial reform law and the recent written statement of Mary Schapiro, chair of the Securities and Exchange Commission, we have been able to clarify the origin and evolution of the three confidentiality provisions that became law in Section 929I.  And despite Schapiro’s descriptions of the provisions in terms that downplay the importance or effect of changes in the language, we have observed the addition of two phrases, in two stages, to the FOIA exemptions in what would become Section 929I of the financial reform legislation.

The first change took place between the introduction of H.R. 3817 (Investor Protection Act of 2009) on October 15, 2009, which included provisions exempting various forms of information relating to “an examination of a person…” (Section 409), and the introduction of H.R. 4173 (Wall Street Reform and Consumer Protection Act) on December 2, 2009, which incorporated the language of H.R. 3817 as Section 7409. The latter bill applied the provisions to various forms of information relating to “an examination, surveillance, or risk assessment of a person…”

The second change took place between House referral of H.R. 4173 to the Senate after passage on December 11, 2009, and the release of the base text for the Conference Committee on June 10, 2010 (after which the language, now “Section 929I,” did not change). During that time, the three provisions of Section 7409 were condensed – and each added the phrase “or other regulatory and oversight activities” to the references to “surveillance” and “risk assessments.”

Schapiro testified that the “operative language” from her predecessor had referred to “an examination of a person…” in 2006/07/08. She added that “the operative language” from her July 2009 legislative proposal to the relevant committees had included a reference to various forms of information “including without limitation surveillance, risk assessments, or other regulatory and oversight activities.”

We admit these changes may be small – but we think those changes had a big impact on the reading of Section 929I and its application.

SGI testifies about new SEC FOIA exemption statute

SGI Coordinator Rick Blum provided testimony to the House Financial Services Committee regarding the Committee’s review of Section 929I of the Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Section 929I added three statutory exemptions – known as “b(3)”s, after the subsection of FOIA permitting them – for the Securities and Exchange Commission to use to withhold information from FOIA requesters. Blum argued that Section 929I is overbroad and should be re-written; only Congress can repair 929I; Congress should not risk waiting and having an overbroad interpretation of 929I become ensconced in agency practice; and this process can be part of a larger effort to improve congressional review of b(3) exemption statutes.

Joining Blum on the panel were former SEC Chairman Harvey Pitt, Angela Canterbury of the Project On Government Oversight (POGO), FOIA attorney Steven Mintz, and securities attorney Susan Merrill. Testifying in earlier panels were SEC Chairwoman Mary Schapiro, and Representatives Edolphus Towns and Darrell Issa (Chairman and Ranking Member, respectively, of the House Oversight and Government Reform Committee).

More images of wrongdoing

The military appears ready to recycle arguments from last year, that photographic evidence of wartime abuses by American soldiers poses a threat to national security, the military, or both.

An Army commander is imposing strict limits on photographs in connection with the deaths of three Afghan civilians earlier this year. Descriptions of the photographs and some of the military’s rationales for secrecy in this case are reminiscent of previous photographs and justifications:

The pictures in question show “three dead Afghans with three different Soldiers posing, holding up the decedent’s head. (Each photo was one Afghan, one Soldier),” according to an e-mail by Benjamin Grimes, senior defense counsel at Base Lewis-McChord. Others [photographs described in a memo by Grimes] showed what appeared to be severed fingers and a bone.

(from Salon.com, 9/30/10)

A top Army official has ordered that images of dead or wounded “casualties or detainees” may not be made public during hearings involving an American soldier accused of murdering three Afghan civilians during a deployment to Afghanistan this year.

But the images would be accessible to defense and prosecution teams and could potentially be used as evidence in the case, the Army official, Col. Barry F. Huggins, said in a memorandum.

The decision reflects concern among the Army’s senior leadership that such evidence could anger Afghan civilians at a time when the United States is trying to win support for a counterinsurgency campaign against the Taliban.

“I have determined that the risk of potential prejudice to the substantive rights of the accused, as well as negative impact on the reputation of the armed forces, associated with the potential public dissemination of these images outweighs minimal hardship upon the accused as a result of this order,” wrote Colonel Huggins.

(from the New York Times, 9/24/10)

With the Obama Administration’s support, Congress has already let the Secretary of Defense withhold photographs showing how U.S. forces handled (and in some cases abused) detainees. That ban only covered photographs taken between September 11, 2001 and January 22, 2009; these photographs were taken in 2010.

Will the Administration be tempted to extend the exemption? There’s only one way to find out: Salon.com has filed a FOIA request for the photos.

The fact that this has come up so quickly after the detainee photo controversy shows these fears will come up repeatedly over information held by government, and the justification for the first photos ban was too broad and vague to ensure the U.S. government is kept accountable for the actions of its soldiers.