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.

Mining to resolve a dispute, OGIS gets the shaft

CNN’s Anderson Cooper talks a lot about transparency.  He focused on transparency troubles while covering the gulf oil spill.

Watching the Chilean mine rescue unfold, on October 12th Cooper noted that the Chilean government’s rescue operations have been more transparent than similar responses to mining disasters in the U.S.

If the way the Labor Department ignored the FOIA mediator’s office is any gauge, he may have a point.

Some context for some surveillance

When news broke recently that federal officials were pushing for new regulations to facilitate online eavesdropping (“U.S. Tries to Make It Easier to Wiretap the Internet”, New York Times, September 27, 2010), it seemed like there were two ways to interpret the situation:

Did the proposed powers represent a significant change from the status quo?

The administration’s proposal… would require reconfiguring of the Internet to provide easier access to online communications. —ACLU

Or did the proposed powers merely enable law-enforcement officials to continue doing what they had been doing?

We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security. —FBI general counsel Valerie E. Caproni

We couldn’t help thinking this sounded familiar.

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.

ICE rethinks an immigration disclosure; hoping for a trend

In light of President Obama’s first-full-day-in-office proclamation about transparency and FOIA, and the subsequent FOIA memorandum from Attorney General Eric Holder, we have been both hopeful and cautious when it comes to evaluating the Administration’s progress. Evaluating progress means looking at changes in numbers, and changes in experiences. One of those experiences involving a small newspaper and a story about immigration-related arrests may show the trends are encouraging.

Four years ago, Immigration and Customs Enforcement (ICE) arrested twenty-six people at a Bellingham, WA business, on suspicion of illegal immigration. A local newspaper, the Bellingham Herald, promptly filed a FOIA request for the names of the people arrested, only to have the request languish for over three years. Finally, in July 2010, the Department of Homeland Security (DHS) notified the paper that its FOIA request “was being finally and officially denied.”

Upon questioning, a department spokeswoman explained that the request had been processed under the rules of the previous administration – but she volunteered that there was other information which the office could provide. Department officials eventually “provided the nationalities, ages, genders and immigration status of those who were arrested.”

All is not sunshine, however; the department did continue to withhold the names of the arrestees, citing privacy laws – but in light of our previous coverage of DHS (and specifically ICE) stories that used FOIA, it is nice to see the agency take the initiative to respond to FOIA requests with the new rules and principles at heart.

One should be careful when trying to infer larger trends, or judge policies, based on individual events. But in this case, we hope this case is reflecting a rule that many agencies are rethinking their disclosure decisions.

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.

Employees cheated on FBI test on investigations rules, IG says

The Federal Bureau of Investigation (FBI) is well-known for investigating all kinds of people and groups for civil disobedience involving resistance to American government policies, but in the last year, the Bureau has found a new target: itself.