The Myth of Transparency in the Obama Era
Agencies Continue to Cling to Internal Files Even in the Face of Litigation
Washington, DC — The federal culture of secrecy is alive and well despite pledges of a new government transparency. Agencies are still bitterly resisting requests and lawsuits for release of internal records under the Freedom of Information Act (FOIA), according to documents released today by Public Employees for Environmental Responsibility (PEER).
On his first full day in office, President Barack Obama vowed to conduct government business with openness and ordered federal agencies to “adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA.” Since that promise, PEER has filed eight new FOIA lawsuits, as agencies either ignore requests and appeals or improperly withhold records.
A typical example is the PEER lawsuit against the Interior Inspector General (IG) to force release of its long-stalled investigation into the Hubbell Trading Post scandal, in which one of the last authentic Indian traders was put out of business by a misguided and inept National Park Service investigation. The Interior IG would not release either the results of its investigation into the matter or the backup materials.
After PEER sued the IG in September 2009, the agency dribbled out a few documents but withheld most. Of 153 responsive documents identified by the IG, the agency refused to release more than half of them (84). It partially released 51 documents but many of these are so heavily blacked out (see below) that they are incomprehensible. In total, the IG only fully released 18 documents out of the 153 records.
The IG is claiming the need to protect the privacy of parties involved as the basis for most of the withholdings but these same parties, both high Park Service officials and others, are named in court records that are publicly available. In addition, the IG is withholding other records on the ground that they are pre-decisional, even though this deliberative process exemption does not usually apply to a law enforcement investigation. Finally, the IG claims that some records would reveal law enforcement techniques without explaining or even hinting what those secret techniques could possibly be.
“In this case, the Inspector General is acting as a Deflector General by burying its own investigation,” PEER Executive Director Jeff Ruch, noting that the IG investigative report was finished back in January 2008 and has still not been fully released. “The Inspector General is supposed to reveal not conceal.”
Tomorrow, the Justice Department is scheduled to answer the PEER suit and must decide whether it will defend the withholdings and redactions made by its client, the Interior IG. On March 19, 2009, Attorney General Eric Holder issued a memo to all agencies declaring that henceforth “the Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.” This case will be an early test of the “Holder Doctrine.”
“Declaring openness is one thing. Delivering it is another,” added Ruch. “Until officials are held accountable for wrongly withholding public records, the Obama openness directive will have more rhetorical than practical effect.”