In This Issue:
News from Coalition Partners & Others
I. Groups to Congress: Don't Hurt Openness and Accountability in Zeal to Stop Leaks
II. Congress Opts to Protect Access to Important Drug and Safety Info in Compromise FDA Bill
The FISA Amendments Act should not be reauthorized until the legislation incorporates transparency requirements, sixteen groups, including OpenTheGovernment.org and several partners, said in a letter to Congress organized by the Center for Democracy and Technology (CDT) on June 11th, 2012. The letter recommends that the Judiciary Committee should, prior to considering the legislation, require the government to disclose the extent and nature of surveillance and institute reporting requirements that require such disclosure for all future surveillance. As noted in the letter, the bill broadly authorizes surveillance of individuals believed to be non-U.S. persons without judicial authorization or probable cause.
The bill passed the House Judiciary Committee on June 19th, and amendments requiring disclosure of the extent of surveillance of American citizens failed. Senator Wyden has placed a hold on the bill in the Senate over privacy and civil liberties concerns.
More than 25 groups, including OpenTheGovernment.org and several partners, joined Citizens for Responsibility and Ethics in Washington to call for the release of the Office of Legal Counsel’s memo justifying the killing of Anwar al-Awlaki in the interest of open and accountable government. Contrary to President Obama’s stated commitment to transparent government and the Obama Administration’s reasoning behind the release the so-called torture memos in 2009, the Department of Justice has refused to release the memo despite calls by members of Congress and several Freedom of Information Act requests.
Several coalition partners filed a brief in CREW vs. Federal Election Commission (FEC) on June 18, 2012 arguing that the text and legislative history of FOIA clearly requires agencies to determine within twenty working days of receiving a FOIA request whether to comply with the request. CREW filed suit against the FEC after the organization received no determination on a FOIA request in the 20-day time limit. A District of Colombia court held that CREW did not exhaust its administrative remedies before filing suit because the FEC had said it was processing the FOIA request. If it stands, district court’s ruling will make it much harder for a requester to challenge agency delay under FOIA. The Brief is joined by Public Citizen, Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), OMB Watch, OpenTheGovernment.org, and the Project on Government Oversight (POGO).
The Center for Public Integrity and Center for Responsive Politics investigated the rise in undisclosed political expenditures by “social welfare” organizations, or 501(c)(4)s. The organizations found that nearly 90 percent of spending by these nonprofits came from groups who did not disclose their funders. In the 2010 election, more than 100 of these nonprofits spent roughly $95 million in political expenditures.
At 1pm on June 26th, 2012 Sunlight will host a free webinar to help advocates learn to navigate the organization’s new tracking tool, Scout. The one-hour program will cover both basic tasks in using the service for finding and tracking bills on particular issues at the federal and state level and federal regulations. The webinar will also cover advanced functions for organizing research. Register for the webinar here.
On June 15 several coalition partners and other open government allies joined in sending a letter to the leadership of the House and Senate Intelligence Committees urging them to carefully consider any legislation intended to stop leaks of classified national security information.
A look back at the last time Congress waded into the issue of stopping leaks is instructive for highlighting the complex range of issues involved, and the possible dangers created by some "solutions." In 2000 Congress passed anti-leaks legislation as part of the Fiscal Year (FY) 2001 Intelligence Authorization Act. The problems openness advocates cited with the legislation: there are already laws that clearly ban the disclosure of classified information and allow for the prosecution of established national security threats; vague wording in the proposal made it a crime to disclose information that that the person has reason to believe has been classified; and the proposal did nothing to protect people who are blowing the whistle on waste, fraud, and abuse by the federal government. The proposal was attached to the bill and cleared for the President's signature into law without referral to the Judiciary Committees and without a single open hearing where Congress could hear from experts in the field about the effect the bill could have on our civil liberties and the public’s right to hold the government accountable. President Clinton cited many of these concerns when he vetoed the bill in November 2000.
Hasty action by Congress to pass a bill runs a real risk of writing into law policies that not only do not work but also endanger other critical national priorities. Patrice McDermott, Executive Director of OpenTheGovernment.org said, “While the goal of protecting legitimate secrets is honorable, poorly considered legislation could make it easier for people in the government to keep a lid on information that is embarrassing or proves illegality.” We urge Congress to give full and careful consideration to any proposal to stop leaks.
House and Senate negotiators on competing Food and Drug Administration (FDA) reauthorization bills have included in the compromise version language championed by Senator Leahy that goes a long way toward protecting public access to important drug and safety information while addressing the FDA’s concern that some foreign agencies need more assurance the information will be kept confidential to encourage information sharing.
As originally drafted the House bill (HR 5651) and the Senate bill (S.3187) included provisions that authorized the FDA to deny the public access under the Freedom of Information Act (FOIA) to information relating to drugs obtained from a federal, state, local, or foreign government agency, if the agency has requested that the information be kept confidential. OpenTheGovernment.org, along with our allies at Public Citizen and other coalition partners joined in urging Congress to strike the provision, or at least tighten it so as to avoid unintentionally or unnecessarily increasing secrecy at the FDA. Senator Leahy's language, which was accepted as an amendment to S.3187, limits the scope of information the FDA can withhold to information voluntarily provided by foreign governments, requires that the request to keep the information confidential be in writing, and, unless otherwise agreed upon, specifies a time frame after which the information will no longer be treated as confidential.
The House passed the compromise bill on June 20. Once it is passed by the Senate, it will be sent to the President to be signed into law.