Two cheers for Congress: the end of a b(3)

Buried in the middle of the FY2013 National Defense Authorization Act (NDAA) was a pleasant surprise for us: Section 1078, rescinding a statutory exemption to the Freedom of Information Act (or, as we call it, a “b(3)” – after the section of FOIA permitting them), repealed much of the “Smith-Mundt Act”. And earlier this month, this b(3) officially expired.

The United States created the Voice of America during the Cold War to let news programs reach people whose political leaders restricted the press. Amidst concerns that U.S. propaganda might influence domestic policy debates, Congress banned distribution of that programming within the U.S. That is, until earlier this month.

Farm Bill Update: Showdown looms on FOIA’s balanced protections versus special interest

Senator Charles Grassley is again poised — as soon as today, although the timing is far from clear — to present a broad exemption that would set a bad precedent for the administration of FOIA.  We recently wrote about our temporary win.

The proposal would exempt from disclosure the GPS coordinates of farms as well as basic contact information for owners and operators of farms and food processing facilities. Such entities are corporations, although Sen. Grassley and others are arguing that these locations are both businesses and individual residences, thus they deserve special privacy protections.

We strongly believe that the FOIA already balances the public interest in disclosure with trade secrets, individual privacy, national security and other interests. A better approach would be to reinforce the notion that existing laws such as the Freedom of Information Act already protect personal privacy.

New, unnecessary exemptions set a bad precedent for keeping the public informed of important public safety events.  For example, the FOIA’s existing balanced protections were adequate when the USA Today reported on why a recall of tainted beef didn’t include lunchboxes, waste in the food subsidy payments system or shortcomings in the federal farm loan program.

Successful fight to stop farm bill secrecy — for now

Senator Patrick Leahy and open government groups have stopped at least for now the Grassley amendment that would bar disclosure of basic phone directory information for owners and operators of livestock and poultry processing facilities and farms.  We explained our concerns about the provision quickly, other groups weighed in as well, and Senator Leahy’s worked diligently to explain the ramifications of this seeming milquetoast provision to his colleagues, and it became clearer that the proposal had problems.  We appreciate the delay to afford open government groups the opportunity to work with Senators Grassley and Boxer to find a better approach that upholds the public’s interest in a transparent and accountable government.

Livestock owners’ “phone directory” info should not be covered with blanket of secrecy

(Updated 5/23/13 at 1:18pm)

Corrected 5/23/13 at 1:30pm

The full Senate is taking up the farm bill (S. 954), and one amendment three amendments (Amendment 970, 1011 and 1097) from Senator Charles Grassley contain nearly identical language that would eliminate basic “phone directory” information from disclosure, including the name, address, contact info (including email address), GPS coordinates and other identifying information of livestock owners and operators. They claim it’s a defense against domestic terrorism.

The EPA in the last few weeks released such information under FOIA to one (or more) environment groups. That release was criticized by some in Congress. However, the controversy around farmer and rancher’s address and contact information goes back a while to when the USDA was trying to create a system to trace back foodborne illness outbreaks to the source (e.g., the farm) within 72 48 hours to abide by trade agreements. (And it may go back further than that.)  There was much opposition among ranchers and farmers to that program, known as the National Animal Identification System (NAIS).  Eventually, that program was dropped.

During past discussions about this data, we tried to accommodate those concerns and carefully consider when the journalists would find that information useful in reporting (such as when an outbreak occurs) and find some compromise text, but we did not find anyone pushing the exemption who was willing to compromise.

The amendment is ill-considered and should not be voted on in such a rushed manner, especially when the interests in disclosure are as significant as the safety of the food supply. At a very minimum the public has an interest in learning the location of farms implicated in a health scare so the public can evaluate how those responsible for the safety of the food supply are responding.  The current amendment fails to balance any interest in keeping the records confidential with the public interest in disclosure.  The amendment creates a bad precedent for the federal government and for the public that has a strong interest in having full and fair information about newsworthy events regarding the safety of the food supply. Operators of any type of business already have exemptions written into FOIA to protect trade secrets and individual privacy.

This amendment is bad for transparency and accountability and shouldn’t be taken up until sponsors work to address the concerns with the proposal.

House panel’s pointed letter to Justice sends impatient message on #FOIA

In a renewed and welcome spirit of bipartisanship, the Chairman and Ranking Member of the House Oversight and Government Reform Committee earlier this week sent a letter to the Justice Department’s Office of Information Policy (OIP) asking pointed questions about OIP’s actions to encourage agencies to comply with FOIA by reducing backlogs, reigning in the use of statutory exemptions and updating FOIA regulations.  We’re especially appreciative that Chairman Darrell Issa (R-Ca.) and Ranking Member Elijah Cummings (D-Md.) mentioned a database of the statutory exemptions to FOIA that we compiled and ProPublica published a while ago.

This is a great time for FOIA because so much has evolved since Congress enacted the 2007 FOIA amendments (pdf) five years ago. FOIA Online is now a realistic option for agencies to go digital with their FOIA operations while realizing huge savings for the federal government, an important aspect to getting any legislation through Congress.

Congress could mandate that agencies move to FOIA Online as their current contracts for FOIA processing expire, invest the savings from the move to a shared service to improving FOIA.  Improvements could include developing further the FOIA Online system, targeting efforts to improve FOIA processing and reduce backlogs and delays, and quickly convening a FOIA Delays Commission to compile and identify other areas for improvements.

There are many problems with FOIA administration today and many areas for improvement.  Some require executive branch action while others would require legislation.  Any legislative actions around FOIA will have attract the support of Senate and House leaders, a growing number of whom want to see the Freedom of Information Act inform the American public while protecting what deserves protection and serve as a dependable tool for obtaining from government vital information in a timely, efficient and impartial manner.

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.