In 2019, journalists, politicians and pundits shouldn’t be asking whether White House officials should using WhatsApp. If a given encrypted or ephemeral app does not have archiving built in, public servants should not use it for public business, much less … Continue reading
When sunshine is applied to government, what’s revealed can be determined by the eye of the beholder. After the 115th Congress neglected oversight of open government, the U.S. House Oversight Committee held a hearing on the Freedom of Information Act … Continue reading
Celebrating Sunshine Week is off to a good start in the nation’s capitol, but not without some shadows along the way.
Good morning from DC! #SunshineWeek is here, & I’m headed into a National Freedom of Information Day Conference. https://t.co/HTrKUjgoTo It will be the last #FOIDay at this @Newseum location. #FOIAFriday #opengov pic.twitter.com/gBokeFjHxH
— Alex Howard (@digiphile) March 8, 2019
So far, the public has heard robust defenses of the role of access to information and journalists in our democracy on a national Freedom of Information Day conference at the Newseum, and a forum on open government at the National Archives that included reflections from all three branches. I attended both events in person. I didn’t go over to the Justice Department, where Principal Deputy Associate Attorney General Jesse Panuccio gave a speech at the agency’s Sunshine Week kick-off, but I did hear that he criticized unnamed groups whose requests are “straining the system.”
“Some groups have turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking,” he said. ”Immediate litigation has become a feature of FOIA administration rather than a last resort, and the result is often that large and complex requests by institutional actors are moved, by court order, ahead of requests by average citizens.”
Panuccio said that he sent a a memorandum to all agency General Counsels and Chief FOIA Officers stressing that “improving FOIA performance requires the active participation of agency Chief FOIA Officers.” The Department of Justice has not disclosed the memorandum yet.
Here’s else what I saw, heard, and learned so far on Sunshine Week in 2019.
Good morning from DC! #SunshineWeek is here, & I’m headed into a National Freedom of Information Day Conference. https://t.co/HTrKUjgoTo It will be the last #FOIDay at this @Newseum location. #FOIAFriday #opengov pic.twitter.com/gBokeFjHxH
— Alex Howard (@digiphile) March 8, 2019
Embedded above is a Twitter thread on Freedom of Information Day thread on Freedom of Information Day, which included an impassioned speech celebrating the press by House Oversight Committee Chairman Elijah Cummings and encouragement to journalists.
In an age where far too many politicians are attacking the press, it was a powerful benediction from a preacher’s son. The following text is a rough paraphrase of Cummings’ remarks, not an official transcript. You can watch video of the entire event, including his speech, on CSPAN, which is in of itself a great example of government transparency.
200 years from now, people will be reading about this period in history.
They will ask: when you saw the press being suppressed, a White House that blocked info from getting to people’s reps, a President who sent memos to career employees telling them they could not be whistleblowers, they’re going to ask what did you do? What did you do? Did you stand on the sidelines? Did you say it was someone else’s business? Did you write the story? Did you take a moment to write the editorial? Did you become fearful?
I view an attack on our press as an attack on all of us, and I will fight with everything I’ve got. And I want you to understand that I’ve got your back. I am the son of 2 Pentecostal ministers. In my house, a lie was a lie and the truth was the truth. We cannot allow fake information to become the norm. And you are the guardians of our freedom of the press. You are the ones who are in guerrilla warfare trying to get info out.
That’s why it’s so critical for Congress to protect your rights and people throughout the nation to get information through FOIA. People want to hold Trump accountable, but how can you hold him accountable if you don’t have information? If you have a secret meeting with Putin & no one knows about it?
Come on now: We’re better than that. If you block information, it’s impossible to have accountability. FOIA is critical to help the American people understand the decisions being made by their government. It is also crucial to understanding who is making those decisions and how they will affect their daily lives.
One of our top priorities this Congress is to investigate agency compliance with FOIA & evaluate how we can improve the law. “Never mistake a comma for a period.”
Things can always be improved upon. I hope Republicans will work with us in a bipartisan manner. It took us 3 years of hard work, with the help of many, & I thank you, & negotiation, & then with the help of Senator John Cornyn and Senator Leahy, we got it over the finish line. The FOIA Improvement Act is a prime example of how Congress can work together.
This week’s Freedom of Information hearing will have the EPA, Department of the Interior and The Justice Department. I invited The Justice Department because they’re in charge of ensuring compliance with the FOIA. In my opinion, they must do a much, much, much better job. At EPA, FOIA requests sent through political appointees and “Deep 6’ed.” Certain FOIA requests were deliberately delayed. That’s why Congress needs to conduct oversight, to shed a light. Secretary Ross will be coming before House Oversight to testify about how citizenship question was added to the 2020 Census.
As Oversight Chairman, my immediate responsibility is to do this kind of oversight. That work helps us to develop reforms for the future. You are so important. You are more important than you know.
I beg you to tear down any walls that might block you from getting info to the American people that they need to know. Stand up for strong FOIA law. Work with us. Don’t be silent.
I want our grandchildren to know that we stood up for this democracy. That we, all of us, had great respect for the people who created the Constitution. That we decided to be about freedom of the press & getting the information out. We are at a critical moment in our country’s history. I am so glad that you have been called to this moment to be the guardians of our information and the flow of our information.
Embedded below is a tweeted thread from the National Archives Sunshine Week event, including Judge Howell, discussion with federal FOIA ombudsman staff, and a livetweet of Senator Patrick Leahy’s comments. Video of the entire event is embedded above.
For anyone watching the @USNatArchives #SunshineWeek event, the US District Court for DC website is https://t.co/RKKtza9Oub. Here’s an interesting decision by Judge Howell, who’s speaking now: https://t.co/H2ODAtXL50 #opengov pic.twitter.com/raUfNBE5pY
— Alex Howard (@digiphile) March 11, 2019
The National Archives subsequently wrote about celebrating Sunshine Week on its website.
Leahy, who subsequently tweeted out a transcript of his remarks, observed that ”the list of threats to transparency under the Trump administration goes on, and expands far beyond just FOIA itself.”
“President Trump’s ongoing, opaque ties to his business organization make it impossible to know whether foreign governments and corporations are able to curry favor with him by spending money on his business,” the senator said. “The Trump administration has also issued an unprecedented number of lobbyist waivers to its appointees in secret – preventing the public from knowing whether Trump agency officials are simply continuing their advocacy on behalf of special interests in their official capacities.”
Senator Cornyn, a former judge and Texas attorney general, also spoke to the value of open government but not posted a transcript yet. He did tweet about his visit, stating that “Government transparency is the cornerstone of democracy. I’m proud to have passed the #FOIA Improvement Act and will continue to push for policies that ensure our government remains accountable to we the people.
As I tweeted from the event, I learned the FOIA was amended in 1974 to include sanctions against individual federal agency employees, as noted in this 2013 paper on enforcing the public’s right to access information, after Ralph Nader suggested it:
Fun facts I learned during #SunshineWeek:
1) FOIA was amended in 1974 to include sanctions against individual federal agency employees https://t.co/S4HcnQlvSM
2) @RalphNader suggested it
3) @TheJusticeDept @FOIAPost hasn’t ever sanctioned anyone#opengov https://t.co/zNjhvMlzwW— Alex Howard (@digiphile) March 11, 2019
I also confirmed that the Justice Department hasn’t ever sanctioned any U.S. government officials or staff for violating FOIA under the amended statute. The fact that sanctions for violating government access laws are almost never applied at any level of government might shed some sunlight on why the state of compliance with public records laws not just in the US government but around the USA.
If FOIA officers and appointees faced fines or even jail time for obstructing disclosures under the law, we might see more of a normative shift towards the “openness by default” described in the FOIA statute. Unfortunately, the Department of Justice’s Office of Information Policy does not show any inclination to do more than encourage agencies to comply and praise those that do.
Earlier today, the Oversight Committee released a fact sheet that documents various aspects of the Trump administration record of secrecy.
Tomorrow morning, the public will see what Sunshine Week looks like in the House of Representatives, when the Oversight Committee holds a hearing on FOIA and transparency, followed by a hearing with Commerce Secretary Wilbur Ross on Thursday “to determine why he and other Trump Administration officials gave misleading testimony about how the citizenship question was added to the Census, which has been deemed ‘unconstitutional and a violation of federal statute‘ by two federal judges.”
Whether more sunshine disinfects secrecy and corruption remains to be seen, but more public information about how public power is being wielded will inform both the public and their representatives in Congress. On Sunshine Week, that’s a good start.atch
Sunshine Week 2019 may officially begin on March 10, but it’s unofficially kicking off tomorrow with the National Freedom of Information Day Conference at the Newseum in DC.
For those unfamiliar with this annual celebration of open government around the United States, Sunshine Week was founded over a decade ago by the American Society of Newspaper Editors, who now support it with the Reporters Committee for Freedom of the Press.
Sunshine Week always falls around President James Madison’s birthday on March 16. Madison is generally regarded as the forefather of open government in the United States, as evidenced by this memorable letter in 1822:
“Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives,” he wrote.
In 2018, the “information darkness” of the Trump administration led to ignominy, from the Electronic Frontier Foundation’ “Foilies” to the Society for Professional Journalists’ Black Hole Award to the National Security Archives’ Rosemary Awards.
In 2019, transparency and accountability have taken on additional context during the Trump administration, which has continued to be allergic to transparency, rife with conflicts of interest, and hostile to the essential role journalism plays in a democracy. When the President of the United States repeatedly calls journalists “the enemy of the people,” a disinformation virus is weakening our body politic.
Despite the enactment of a historic open government data bill, the state of open government (data) remains divided, at risk, and underfunded in the United States.
After years of delays and democratic regression, the US government released a weak open government plan for the Open Government Partnership that was not responsive to the demands of this moment. The Open Government Partnership’s researchers found backsliding in the USA, confirming what watchdogs have been highlighting daily about this administration since January 2017.
Every Sunshine Week is an opportunity to take stock of how federal, state and local governments are complying with public records, public meetings laws, and ethics statutes with disclosure requirements, from city halls to legislatures. As the National Security Archive highlighted, the state of the Freedom of Information Act is cloudy:
Representative Elijah Cummings, D-Md, and Senators Chuck Grassley, R-Iowa, Patrick Leahy, D-Vt., and John Cornyn, R-Texas, recently sent a stern letter to the Interior Department reprimanding the agency for its efforts to weaken its FOIA regulations and urging it to reconsider the rule change. The proposed rule changes which garnered more than 65,000 comments – include allowing the DOI to preemptively reject what it defines as “unreasonably burdensome” requests, the possibility of imposing a monthly limit to the number of either pages or requests from a single requester the agency will process, and a host of other changes that may make it more difficult to obtain fee waivers and expedited processing.
The bipartisan group of lawmakers, all seasoned FOIA champions, told the Interior Department, “We write to express significant concern with the rule recently proposed by the Department of the Interior (DOI) concerning its Freedom of Information Act (FOIA) procedures. The proposed rule appears to restrict public access to DOI’s records and delay the processing of FOIA requests in violation of the letter and spirit of FOIA. The American people have the right to access information from DOI, and the proposed rule needlessly encroaches on that right.”
The context for oversight of open government at the national level for this year, however, is different. 2018 midterm elections delivered a 116th Congress that brought with it a commitment to oversight that was sorely lacking in the last session. A core element of that oversight has been public hearings that hold public officials and corporate executives accountable for their service or services.
That will continue next week, when, as has been the tradition in past years, the U.S. House Oversight Committee will be holding a hearing during Sunshine Week in 2019, considering the Freedom of Information Act and transparency under the Trump administration.
There will be many other Sunshine Week events around DC as well. The Department of Justice’s awards for FOIA officers. The National Archives celebrating the 10th anniversary of the Office of Government Information Services (aka the federal FOIA ombudman) during the day on March 11. That night, there will be a panel discussion on how to obtain and improve coverage of climate data at the National Press Club hosted by its Journalism Institute and Freedom of the Press Committee.
There will be a DC Open Government Summit and a forum on science in the Trump era put on by the Government Accountability Project, the Union of Concerned Scientists, and the Sunlight Foundation’s Web Integrity Project on the evening of March 12.
Despite the threats to American democracy at the federal level and ongoing challenges to open government in the states and cities, there’s still much to celebrate in 2019.
The free press, independent judiciary, and watchdog organizations have continued to provide transparency when elected officials and civil servants have tried to make decisions in secrecy, shedding light on corruption, fraud, waste, abuse and incompetence.
Their combined efforts to bring in sunshine in government across American civil society have been a bulwark against tyranny and corruption in the United States and around the world. Thank you to everyone who continues to support, defend and extend the public’s right to know in the 21st century.
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Today, President Donald J. Trump signed H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2018, which, as the White House release summarized, “improves evidence-based policy through strengthening Federal agency evaluation capacity; furthering interagency data sharing and open data efforts; and improving access to data for statistical purposes while protecting confidential information.”
Back on December 21, 2018, the United States Congress sent the Foundations for Evidence-Based Policymaking Act of 2017 to the President’s pen in a historic win for open government in the United States of America.
The Open, Public, Electronic, and Necessary Government Data Act (AKA the OPEN Government Data Act) is now the law of the land.
Two canonical principles for open, digital government in the 21st century are now the default in the United States:
As I’ve said before, this reform represents “a genuine opportunity to not only improve how the nation makes decisions but embed more openness into how the federal government conducts the public’s business.”
This is a historic, bipartisan win for open government data, after years of trying. It is a milestone for the open movement, codifying core principles into code.
Thank you to all of the advocates, legislators, watchdogs and journalists who played an essential role in making open government data the law of the land.
