Policy and News Update for April 5, 2011

In This Issue: [click on the link to go to the corresponding section]


News from Coalition Partners & Others

I. POTUS Talks Open Gov Commitment and Challenges in Oval Office Meeting
II. Open Gov Community Asks Administration to Coordinate Agency Requests to Limit Access to Information
III. Check Out Sunshine Week Webcast on YouTube

News from Coalition Partners & Others

TRAC Launches FOIA Litigation Tracker

Last week the Transactional Records Access Clearinghouse (TRAC) launched The FOIA Project to bring transparency to the process by which the U.S. government withholds information. The site, which is updated on an ongoing basis, provides ready access to information about every instance since October 2009 where a plaintiff anywhere in the United States challenges a government withholding decision in federal court. Later phases will expand coverage to turndowns at the initial request and administrative appeal levels. Visit the site to play with the data, make a suggestion, volunteer, or learn more.


Daniel Ellsberg Joins BORDC Advisory Board

The Bill of Rights Defense Committee (BORDC) recently welcomed Daniel Ellsberg to its advisory committee. Dr. Ellsberg is the former US military analyst responsible for the release of the Pentagon Papers, which, among other things, revealed the extent the government had lied to the public and Congress about US involvement in Vietnam.


GAP Announces Results of Campaign to Reveal Secret Hold on Whistleblower Protection Bill

Over the weekend the Government Accountability Project (GAP) and the NPR Show "On the Media" announced that at the end of their campaign to determine which Senator placed a last-second hold on the Whistleblower Protection Enhancement Act in the closing days of the 111th Congress, only two suspects – Senator Jon Kyl (R-AZ) Arizona and Senator Jeff Sessions R-AL – remained. The campaign shined a spotlight on how Senators can use arcane rules to stop legislation from passing without ever taking credit, or being held accountable for their actions. The complete results of the campaign, with citizen documentation for each senator, can be viewed here.

I. POTUS Talks Open Gov Commitment and Challenges in Oval Office Meeting

On March 28, several open government advocates who sit on the Board of OpenTheGovernment.org met with the President in the Oval Office to present him with an award for his commitment to transparency in government, and to discuss key issues for the open government community. As several accounts of the meeting note, they had was an honest exchange with the President on substantive issues, including the Freedom of Information Act (FOIA), open government, the need to protect reporters with a good shield law, and to protect whistleblowers – including those in the national security arena. Additionally, they raised the issue of over-classification and its effect on both leaks of classified information and in the invocation of the state secrets privilege.

The meeting and presentation were originally scheduled to coincide with Sunshine Week. Considering we are halfway through the first term of the only President who has officially directed the federal government to make transparency a priority, honoring the President for that commitment, and letting him know where his promises have not developed into the real-world changes we all hope for, is fitting. We will continue to work with the Administration – and to hold feet to the fire — to ensure that we do open the government.

Please read Dr. McDermott’s first person account of the meeting here.


II. Open Gov Community Asks Administration to Coordinate Agency Requests to Limit Access to Information

 On Thursday, March 31, a group of advocates for open and accountable government sent a letter to the Robert F. Bauer, Counsel to the President, requesting the Administration set up a process to review and coordinate agency proposals intended to protect information that was formerly withheld from the public under Exemption 2 of the Freedom of Information Act (FOIA). The letter also asks that the Department of Justice serve as a coordinating body within the Administration and that congressional committees with jurisdiction over FOIA be notified and consulted about all proposals that would require legislation.

Exemption 2 of FOIA pertains to "records relating to employee relations and human resources issues." In a case called Milner v. Department of the Navy, the Supreme Court recently ruled the government was interpreting Exemption 2 of FOIA in an overly broad fashion to withhold all "predominantly internal" materials. As a result of this ruling, it appears some materials previously withheld by government agencies may now be subject to disclosure.

We understand agencies are already approaching various congressional committees with proposals to add new protections for information that may now be subject to disclosure. Most of these proposals will not directly amend FOIA. Rather, they will be small provisions, usually tucked into much larger bills, that exempt a certain type of information from public disclosure. Once the provision becomes law, the information is protected under Exemption 3 of FOIA – material protected by other statute. Because the FOIA itself is not actually amended, Congressional committees with expertise in public disclosure will not necessarily be consulted. And, because such provisions are usually small parts of big bills, the public generally has no knowledge of these new restrictions on access to information until they become law.

Setting up a coordinated process to review and limit proposals to address agency concerns about protecting information after Milner will help ensure that any new exemptions from public disclosure are not overly-broad or unnecessary. We hope the Administration will act quickly on our proposal.

 III. Check Out Sunshine Week Webcast on YouTube

Do you want to watch panelists from our Sunshine Week 2011 Webcast – The Road Ahead on Open Government, but don’t have time to watch the entire broadcast? We’ve recently uploaded clips of all of our panelist’s presentations and the audience Q&A to OpenTheGovernment.org’s YouTube Channel.

During the first panel, David S. Ferriero, Archivist of the United States, Steven P. Croley, Special Assistant to the President for Justice and Regulatory Policy, White House Domestic Policy Council, and Gary Bass Executive Director, OMB Watch, discussed policy aspects of open government, including the National Archives and Administration’s wide-ranging responsibilities for open government, the Administration’s recently-announced plans to improve openness through FOIA, and what other steps the open government community thinks the Administration should take. Connect to all of the clips from panel 1 here.

Our guests on the second panel, Jennifer LaFleur, Director of Computer-Assisted Reporting at ProPublica, Tom Lee, Director of Sunlight Labs at the Sunlight Foundation, Sheila Krumholz, Executive Director of the Center for Responsive Politics, and Todd Park, Chief Technology Officer, U.S. Department of Health and Human Services, covered the technical aspects of making government data more available and usable by the public. Watch all of the clips from the second panel here.

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