Policy and News Updates for June 17, 2008

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

News from Coalition Partners & Others

I. OpenTheGovernment.org Director Testifies About CUI/SBU Policy, Legislation

II. Supreme Court Vindicates FOIA Requestor, Advocates

III. Third Attorney General Report to the President on Executive Order 13392, "Improving Agency Disclosure of Information" Released

IV. Critical Coverage Leads to Blacklisting

News from Coalition Partners & Others

CDT Announces Blueprint for Internet Policy Discussion

The Center for Democracy & Technology announced a platform to keep the internet open, innovative, and free. The project includes six key questions for candidates, "The Internet in Transition," a primer for candidates, and a primer for citizens.


GAP-AU/WCL Whistleblower Rights Conference

The Government Accountability Project and American University Washington College of Law are hosting a national whistleblower law conference on June 23: The Emerging Era in Whistleblower Rights and the Public’s Right to Know (registration required, but free).


TRAC wins important case against IRS

TRAC just obtained an important FOIA decision against the IRS on June 13, in the Western District of Washington. Judge Marsha Pechman ordered the IRS to provide TRAC several new and very significant agency statistical tables, to stop redacting the tables it is currently producing, to produce data for which it claimed a spurious work product privilege, to produce data electronically, and to produce samples of other requested statistical information. Judge Pechman further denied the IRS’s requests that the consent decree be modified, holding that the IRS was not in a position to request relief because it had blatantly violated her orders. This case goes back to the mid-1970s.


I. OpenTheGovernment.org Director Testifies About CUI/SBU Policy, Legislation

OpenTheGovernment.org Director Patrice McDermott gave testimony at a hearing of the House Committee on Homeland Security’s Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, along with Meredith Fuchs of the National Security Archive and Caroline Fredrickson of the ACLU, on H.R. 6193, "The Improving Public Access to Documents Act of 2008." Full statements, testimony, and video are available at the hearing page.


II. Supreme Court Vindicates FOIA Requestor, Advocates

In a unanimous decision, the Supreme Court ruled that every FOIA requestor has a right to his/her own response. This confirmed the arguments of FOIA advocates, as presented to the Court by an amicus curiae brief from the National Security Archive, which OpenTheGovernment.org joined.


III. Third Attorney General Report to the President on Executive Order 13392, "Improving Agency Disclosure of Information" Released

On May 30, the Department of Justice (DOJ) released a report claiming that federal agencies have made "sustained and measurable progress" towards meeting agency-set benchmarks required by Executive Order (EO) 13392, a 2005 presidential directive intended to improve Agency handling of Freedom of Information requests. When judged against standards other than the agency-set milestones, though, the state of responsiveness to public requests for information remains a serious problem, and the report’s recommendations do not address the core challenges impeding agencies’ progress in that area, including the first and second most cited reasons for failing to meet the agency-set benchmarks — lack of sufficient resources and competing priorities.


IV. Critical Coverage Leads to Blacklisting

Last Thursday, Steve Aftergood (of the Federation of American Scientists, an OpenTheGovernment.org coalition partner) learned that his blog, Secrecy News, had been blacklisted from the distribution list for the State Department Historian’s Office publication, "Foreign Relations of the United States," in response to recent Secrecy News coverage highlighting FRUS errors (on March 24 and March 26).

Q. Your March 26 post described the FRUS series as containing both "errors and questionable editorial judgments." What do you think disturbed the State Department more, or is there a cumulative effect?

A. It’s difficult to say for sure, because State Department officials aren’t talking to me — which is part of the problem. I imagine that from their point of view, my comments (including some mild sarcasm) may have seemed presumptuous or even impudent, considering that I am not a credentialed historian. I think that an open, straightforward response from State Department historians would have been more constructive, especially if they thought that my criticisms were somehow mistaken.

Q. Do you know of any previous State Department/FRUS reactions to errors, identified by yourself or anyone else?

A. Nothing quite like this case. But in the early 1990s there was a much more profound challenge to FRUS, when historians realized that this official history publication was omitting all mention of CIA covert actions in the early years of the cold war, including the CIA role in the 1953 coup in Iran. It was a source of tremendous embarrassment, and it led Congress to enact a crucial statute requiring FRUS volumes to be "thorough, accurate, and reliable."

Q. Do you think your previous willingness to post correspondence involving subjects of Secrecy News stories ("A Word from Wikileaks," February 22) makes it more, or less, likely that someone from the State Department will engage you publicly?

A. I would think that the State Department would want to make its position publicly known, especially if officials have a legitimate argument to make.

Q. Is it likely that the error regarding the date of Jan Palach’s self-immolation (January 16th/17th) was a typo?

A. Yes, I think that is the most likely explanation. And in any volume of hundreds of pages, you are going to find such errors if you look hard enough. On the other hand, if a history of the American Revolution stated that Independence Day fell on July 5, that would tell you that the text had not been properly copy-edited.

Q. Does this reaction strike you as an isolated incident, or does it seem to be related to larger trends in openness/transparency/government information policy?

A. The specifics of this incident are probably unique to the State Department Historians Office and to the personalities involved. But this episode also illustrates how access and disclosure can be used by government officials as political tools to reward or punish individual members of the press or the public, which is a much more widespread phenomenon. It also demonstrates a disappointing lack of professionalism and small-mindedness. If I correctly pointed out an error, they should thank me. If I made a mistake, they should correct me. Instead, they have chosen to practice a clumsy kind of ostracism, which really doesn’t serve anyone’s interests.

Q. What is the practical effect of having Secrecy News removed from the State Department History Mailing List? What kinds of consequences do you anticipate — for your readers, and for other agencies that may be tempted to remove people from such channels of information?

A. The practical effects will be negligible, particularly since FRUS publications are now published on the State Department web site (though I personally prefer the hardcopy volume). Indeed, if the State Department had decided to cease sending me FRUS as a cost-cutting step, I would have had no grounds to object. But since I was apparently singled out for termination as a punitive measure, I feel obliged to protest.



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