Transparently shameful

The federal government has gotten even more secretive than before

Published: Wednesday, March 17, 2010 at 3:15 a.m.
Last Modified: Tuesday, March 16, 2010 at 6:48 p.m.

On his first full day in office, President Barack Obama told federal employees that the Freedom of Information Act, "which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government."

Obama also said agencies shouldn't hide information because it might make them look bad, and the presumption of disclosure should always apply in regard to the Freedom of Information Act.

He may need to say it again, because a review of 17 major federal agencies by The Associated Press released this week shows that the government under Obama has gotten more secretive.

A lot more secretive.

There are nine major exemptions in the federal Freedom of Information law that allow agencies to withhold information. Use of all nine rose significantly during the 2009 budget year, which ended last October, compared to 2008.

Obama was president for the last nine months of fiscal 2009.

One of the most often used exemptions allows the government to hide records detailing its internal decisions. Obama directed agencies to stop using that exemption so frequently, but it was cited 70,779 times during fiscal 2009, compared to 47,395 times in the previous year.

The most egregious examples of this included:

-- The Federal Aviation Administration's refusal to give the AP information on how and why it decided not to release a database showing incidents in which birds and airplanes collided, as happened in January of this past year when US Airways Flight 1549 had to land on the Hudson River. The FAA initially tried to withhold the bird-strike database from the public, but later released it as pressure mounted.

President Obama's Executive Order permitting retroactive classification
Executive Order 13526

Background

With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some thought it was necessary for government information to be available to the public.

However, the sensitivity of some government information and private interests clash with this view. Therefore, Congress attempted to enact a Freedom of Information Act in 1966 that would effectively deal with requests for government records, consistent with the belief that the people have the “right to know” about them. The Privacy Act of 1974 additionally covered government documents charting individuals.

However, it is in the exemptions to solicitation of information under these acts that problems and discrepancies arise. The nine exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code, section 552):

1. (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
2. related solely to the internal personnel rules and practices of an agency;
3. specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
4. trade secrets and commercial or financial information obtained from a person and privileged or confidential;
5. inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
6. personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
7. records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
8. contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
9. geological and geophysical information and data, including maps, concerning wells.

Scope

The act explicitly applies only to federal government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously with respect to the withholding, (a) Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.” In this way, there is recourse for one seeking information to go to a Federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.”

The Government in the Sunshine Act is a US law passed in 1976. It is one of a number of so-called sunshine laws, intended to create greater openness in government.

Contents

* 1 Effect
* 2
Definitions and exceptions
* 3 Purpose
* 4 External links

Effect

"The Sunshine Act provides, with ten specified exemptions, that 'every portion of every meeting of an agency shall be open to public observation.' 5 U.S.C. 552b(b) It imposes procedural requirements to ensure, inter alia [among other things], that advance notice is given to the public before agency meetings take place. It also imposes procedural requirements an agency must follow before determining that one of the ten exemptions from the openness requirement applies. However, neither the openness requirement, nor the related procedural requirements, are triggered unless the governmental entity at issue is an "agency," and unless the gathering in question is a 'meeting' of the agency." Natural Resources Defense Council, Inc., v. Nuclear Regulatory Commission, 216 F.3d 1180, 1182 (D.C. Cir. 2000).

Definitions and exceptions

The statute defines a "meeting" as "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business." 552b(a)(2).

The statute defines "agency" to include "any agency ... headed by a collegial body composed of two or more individual members ... and any subdivision thereof authorized to act on behalf of the agency." 552b(a)(1).

The Sunshine Act enumerates 10 specific exemptions for categories of information that need not be disclosed, including:

* information relating to national defense,
* related solely to internal personnel rules and practices,
* related to accusing a person of a crime,
* related to information where disclosure would constitute a breach of privacy,
* related to investigatory records where the information would harm the proceedings,
* related to information which would lead to financial speculation or endanger the stability of any
financial institution, and
* related to the agency's participation in legal proceedings.

Purpose

The legislative intent of the Act is as follows: "The basic premise of the sunshine legislation is that, in the words of federalist No. 49, 'the people are the only legitimate foundation of power, and it is from them that the constitutional charter ... is derived.' Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf." (U.S.C.C.A.N. 2183, 2186).

External links

* Government in the Sunshine Act (5 U. S. C. 552b)
* Information about Government in the Sunshine Act on everything2